DECISION & ORDER Defendant, Sadae Allen, is charged with one count each of Assault in the Third Degree, Menacing, and Harassment in the Second Degree, in violation of PL §§§120.00[1], 120.15, and 240.26[1], respectively. The defendant moves, pursuant to CPL §§30.30 and 170.30[1][e] to dismiss the accusatory instrument based on her Notice of Motion filed on August 29, 2018. The People filed and served their response with the Court on September 7, 2018. Based upon the submissions of defense counsel, the People, a review of the official court file and court action record, transcripts of the court appearances, the Court finds as follows:PROCEDURAL HISTORY AND SPEEDY TRIAL DISCUSSION/CALCULATIONSAt issue in the instant matter is whether the People should be charged for the period during which the defendant was incarcerated in another jurisdiction while this case was pending. Defense counsel alleges in his motion that the prosecution has not been ready for trial for a “minimum of a least one-hundred forty-nine [149] days.” The People state in their opposition that only fourteen [14] days are chargeable to them.Criminal Procedure Law §30.30[1][b] provides that the People must be ready for trial within ninety [90] days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment or more than three months and none of which is a felony. As the top charge here is a misdemeanor punishable by a sentence of up to one year jail, the People are required to be ready for trial within ninety [90] days of arraignment.The defendant bears the burden of going forward by sworn allegations of fact to show that there has been an inexcusable delay beyond the time allowed by statute, and then the People have the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss. People v. Santos, 68 NY2d 859 [1986], see also People v. Berkowitz, 50 NY2d 333 (1980), People v. Luperon, 85 NY2d 71, 78 [1995][before the People declare their readiness, all time runs against them unless they can claim the benefit of an exclusion]. Whether the People have satisfied this burden is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People’s declaration of readiness, subtracting any periods of delay that are excludable and then adding to the result any post-readiness periods of delay that are actually attributable to the People and are ineligible for an exclusion. People v. Cortes, 80 NY2d 201, 208 [1992].Speedy Trial CalculationsMarch 3, 2016 to May 3, 2016On March 5, 2016, defendant was issued a Desk Appearance Ticket [DAT] to appear on May 3, 2016, in connection with the incident for which defendant was charged herein. CPL §30.30[5][b], states in pertinent part, “where a defendant has been served with a desk appearance ticket, the criminal action must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to the ticket.” As the defendant was issued a DAT to appear on May 3rd, 2016 by the New York City Police Department, the time charged between March 3rd, 2016 and May 3rd, 2016 is not charged to the People.[CHARGEABLE TIME - 0 DAYS]May 3, 2016 to May 13, 2016On May 3, 2016 the defendant failed to appear and a warrant was ordered by the Hon. George Grasso. Criminal Procedure Law §30.30[4][c][i], in pertinent part states, “in computing the time within which the people must be ready for trial, the following periods must be excluded: the period of delay resulting from the absence or unavailability of the defendant.” As the defendant failed to appear and the defendant is deemed absent and/or unavailable and may be attempting to avoid apprehension or prosecution, the time between the absence and the date that the defendant does appear herein is not chargeable to the People. The defendant did appear, as discussed below on May 13th, 2016.[CHARGEABLE TIME - 0 DAYS]May 13, 2016 to June 10, 2016The defendant returned on the warrant before the Honorable Brenda Rivera on May 13, 2016 in AR1. The defendant was arraigned on the accusatory instrument and the People answered ready for trial and the court adjourned the matter to June 10, 2016 Part AP5 for trial, as defense counsel waived motions.1 See, People v. Kendzia, 64 NY2d 331, 337 [1985]["to be effective, a statement of readiness must be communicated on the record at a time when the People are truly ready to proceed"].[CHARGEABLE TIME- 0 DAYS]June 10, 2016 to June 24, 2016On June 10, 2016, before the presiding judge in AP5, Honorable Carole Sharpe, defense counsel stated that the People were aware that the defendant was in custody and that People had to have an Order to Produce. The People in their opposition state that they spoke with defense counsel on May 27, 2016 whom advised the People that defendant was on probation in Westchester. The People later learned that defendant was being held in Westchester. Notwithstanding this, the People stated not ready for trial and requested an adjourn date of June 24, 2016 to produce the defendant. The time period June 10, 2016 to June 24, 2016 is chargeable to the People as they have conceded in their opposition that they were not ready trial nor did they produce the defendant for trial. See, People v. England, 84 NY2d 1, 4 [1994] [finding that "the People are not presently ready for trial, for example, where they fail to produce an incarcerated defendant for trial"].[CHARGEABLE TIME -14 DAYS]June 24, 2016 to July 21, 2016The matter was on the calendar in AP5 before the Honorable Laurence Busching on June 24, 2016. People contend in their opposition that they prepared an Order to Produce defendant from Westchester and learned that defendant was released from custody. On June 24, 2016, the defendant was not produced for the calendar call and the following colloquy ensued, in pertinent part, after which the court adjourned the matter to July 21, 2016:MS. LEE: For Mr. Allen the Legal Aid Society by Sun So Lee, and I’m standing in for Mr. SpivakTHE COURT: Defendant is in Westchester, I see.MR. KENNY: Patrick Kenny for the People. Your Honor, it is actually our information, on June 15th, it is our understanding he’s no longer in custody, your Honor. [Transcript p. 2, lines 7-8].A review of the transcript of proceedings on June 24, 2016 reflect that the defendant was not produced for the calendar call. As previously stated above, the People represented that “as of June 15, the defendant was no longer in custody.” [Transcript, p. 2, lines 7-8]. The People state in their opposition papers that on this adjournment date, the “defendant failed to appear, and the People requested a that a bench warrant be ordered.” [People's opposition, p. 9]. The minutes are void of any record made by the People of a request for a warrant. Additionally, the following colloquy continued after the People made their record, in pertinent part:THE COURT: Counsel?MS. LEE: JUDGE, THIS ISN’T MY CASE. MR. SPIVAK’S UNDERSTANDING WAS THAT HIS CLIENT WAS INCARCERATED AND IT WAS ON FOR HIM TO BE PRODUCED. WHEN I LOOKED ONLINE IT DOES STATE HE WAS RELEASED FROM NEW YORK CITY CUSTODY TO ANOTHER JURISDICTION, BUT I DON’T EXACTLY KNOW WHERE HE IS AT THIS POINT.THE COURT: FROM NEW YORK CITY INTO SOME PLACE ELSE?MR. KENNY: YES.COURT CLERK: JUDGE, USUALLY IN THESE CASES WESTCHESTER IS RARELY COOPERATIVE WITH THE CITY WITH PROVIDING DEFENDANTS, AND EVEN LESS COOPERATIVE WITH THE DEFENDANT WITH THE INFORMATION ABOUT THEIR UPCOMING NEW YORK CITY APPEARANCES. SO I WOULD HIGHLY DOUBT THAT WESTCHESTER GAVE THEM AN ADJOURNED SLIP FOR TODAY BECAUSE HE WAS IN PRIOR TO THE LAST ADJOURNED DATE.MR. KENNY: THAT VERY WELL MAY BE TRUE. WE ARE NOT DEBATING THAT, I BELIEVE THE ASSIGNED, HE’S NOT BEEN IN TOUCH WITH WESTCHESTER AT THE MOMENT. [Transcript p. 2-3, lines 9-25, lines 1-3].It has been held that when a defendant is incarcerated in the same jurisdiction as a pending case, i.e. New York State, knowledge by the police of that incarceration is normally imputed to the People. People v. Delmonte, 6 Misc 3d 1034[A] [Sup Ct, Bronx County 2005], citing, People v. McLaurin, 38 NY2d 123, 126, [1975], quoting, People v. White, 32 NY2d 393, 397 [1973] ["it is thus incumbent upon the People to show that the defendant has not been brought to trial for good cause."]; see also, People v. Gatling, 160 Misc 2d 886, 891 [Sup Ct, NY County 1994]["it is settled law of this State that where a defendant is incarcerated in a facility within this State that is known or could have been known to the People, the People have an obligation to have the defendant produced for trial"].Alternatively, it has been found that when a defendant is incarcerated in another jurisdiction [not New York State], that knowledge by the out-of-state authorities of the detention is not automatically imputed to the People. People v. Delmonte, 6 Misc 3d 1034[A] [Sup Ct, Bronx County 2005], see also, People v. Myers, 184 Misc 2d 394, 397-398.In order for the People to avail themselves of an exclusion under CPL §30.30[4][c][i], the defendant must be considered absent whenever his/her location is unknown and he/she is attempting to avoid apprehension or prosecution, or his/her location cannot be determined by due diligence. A defendant must be considered unavailable whenever his/her location is known but his presence for trial cannot be obtained by due diligence.Here, the People were aware of the defendant’s detention based on the previous calendar call of June 10, 2016, as such, the defendant’s location was known. In this matter, the Court finds that the People have not exercised due diligence to secure her presence for trial in order to be considered “unavailable” and thus be afforded an exclusion. See, People v. Lesley, 232 AD2d 259 [App Div, 1st Dept 1996] ["where the location is known, a defendant might still considered 'unavailable,' but only if the People can show that his presence for trial could not be obtained by due diligence"]. While there is no set method to determine due diligence, “each case must be reviewed on an individual basis in order to determine if the People made reasonable efforts to secure defendant’s appearance.” People v. Fernandez, 39 Misc 3d 1221[A][Sup Ct, Bronx County 2013][court found due diligence by the People on adjournment dates where the People submitted exhibits with opposition papers, documentary evidence of the efforts used to secure the defendant's presence, who was incarcerated in Westchester County on an unrelated matter]; see also, People v. Jackson, 2015 NY Misc LEXIS 2164 [Crim Ct, Bronx County 2015][court unable to determine due diligence where the People failed to enclose the Order to Produce to their opposition papers or to otherwise detail efforts made to secure defendant's presence].In this case, the record made by the standing ADA that, “as of June 15, defendant is no longer in custody” appears to conflict with the subsequent record made that the Assigned, “has not been in contact with Westchester at the moment.” This record calls into question whether the People actually did investigate whether the defendant was incarcerated during this period. Similarly, as in the Jackson case, the People failed to enclose an Order to Produce in their opposition papers or enclose detailed efforts to secure the defendant’s appearance or confirm that she was in fact released from custody [for example, communications by letter or email from the detention facility or even the name of representative from the facility confirming her release date]. See People’s opposition, p. 10. The People note in their opposition they were ordered to investigate whether the defendant was still incarcerated and as such the court adjourned the matter to July 21 for People to produce.2The People, in their opposing affirmation state that on July 1, 2016, they confirmed with the New York City Department of Correction and Westchester County Correction that defendant was not incarcerated. With this blanket statement, the Court is without facts or additional information by the People to determine whether they in fact spoke with these agencies on this date [example, a written confirmation of defendant's release date from the detaining facility].Thus, Court finds that the People are charged with twenty-seven [27] days of speedy trial time, as the People had not met its burden to establish due diligence in order to avail themselves of an excludable adjournment from June 24, 2016 to July 21, 2016. The matter was adjourned and noted on the court file for the People to produce defendant.[CHARGEABLE TIME - 27 DAYS]July 21, 2016 to January 30, 2018This matter was on the calendar in AP5 on July 21, 2016 before the Honorable Armando Montano. There was no appearance by the defendant nor defense counsel. The minutes of the July 21, 2016 adjournment date reflect that the court issued a bench warrant after the following colloquy:PEOPLE: YOUR HONOR, THE PEOPLE WOULD BE REQUESTING THAT A BENCH WARRANT BE ORDERED….THE COURT: OKAY. THE COURT WILL EXTEND THE ORDER OF PROTECTION BUT I HAVE A NOTATION IN THE FILE THAT THE DEFENDANT WAS IN CUSTODY IN WESTCHESTER COUNTY. THERE WAS AN ORDER TO PRODUCE. THE ASSIGNED LOOKED INTO IT AND THEN THERE’S A NOTATION ON A SUBSEQUENT ADJOURN DATE THAT SAYS PEOPLE REPRESENT THE DEFENDANT WAS RELEASED FROM WESTCHESTER CRIMINAL COURT…PEOPLE: PEOPLE HAVE A NOTE ON THE FILE THAT THE ASSIGNED ASSISTANT LOOKED INTO WHETHER OR NOT THE DEFENDANT WAS INCARCERATED. THE ASSIGNED ASSISTANT REACHED OUT TO BOTH RIKERS AND WELL AS WESTCHESTER AND SHE’S NOT INCARCERATED IN EITHER LOCATION. SHE WAS RELEASED FROM WESTCHESTER.As it was determined by the People that the defendant was not in custody during this period, there was no Order to Produce. Further, as defendant must be considered absent whenever his/her location is unknown and defendant is attempting to avoid apprehension or prosecution. As the defendant did not appear, a bench warrant was issued, and the defendant did not return on this matter until January 30, 2018, As there is no proof offered by either side that the defendant was incarcerated during this period of time, the time between the issuance of the bench warrant, to wit: July 21, 2016, to January 30, 2018 is not charged to the People.[CHARGEABLE TIME - 0 DAYS]January 30, 2018 to April 11, 2018and April 11, 2018 to August 27, 2018The defendant returned involuntarily on January 30, 2018 in Part AR3 before the Hon. Frances Wang. Defendant after having returned (involuntarily) on a warrant in this matter, was then released on her own recognizance and instructed to return to Part AP5 on April 11, 2018.The relevant minutes of the January 30, 2018 calendar call reveal following record:THE COURT: THIS CASE IS GOING TO BE ADJOURNED TO AP5 FOR POSSIBLE DISPOSITION AND I WILL GIVE YOU THE SAME DATE OF APRIL 11TH, UNLESS YOU WANT AN EARLIER DATE.DEFENSE COUNSEL: THIS CASE IS GOING TO MR. SPIVAK SO I’M SURE THAT WILL BE FINE. APRIL 11TH.THE COURT: SEE YOU IN COURT AND MAKE SURE YOU’RE BACK IN COURT AP5, APRIL 11TH. IF YOU FAIL TO APPEAR, A WARRANT WILL ISSUE FOR YOUR ARREST. DO YOU UNDERSTAND?THE DEFENDANT: UNDERSTOOD.THE COURT: DO YOU UNDERSTAND WHAT I JUST SAID?THE DEFENDANT: YES, I DID.From the papers herein submitted by defense counsel it appears that the defendant was then incarcerated in Westchester County on January 31, 2018 until August 24, 2018.Defense counsel contends that the People should be charged with one-hundred thirty-five days [135] because the defendant was incarcerated until August 24, 2018. People the contend that all of this time, from January 30, 2018 to April 11, 2018, as well as from April 11, 2018 to August 27, 2018, is excludable.Defense counsel in his motion states that the defendant was arrested on January 31, 2018 in Westchester County, where she was incarcerated until August 24, 2018. Defense counsel in his motion suggests that the People’s obligation to be diligent and make reasonable efforts to produce attached when the defendant was arrested and taken into custody on January 31, 2018. The People contend that all of this time is excludable because they were not aware of the defendant’s detention on January 31, 2018, as the last appearance by the defendant was on January 30, 2018.Pursuant to CPL §30.30[4][e], in computing the time within which the People must be ready for trial pursuant to subdivisions one and two, the following periods must be excluded, the period of delay resulting from detention of the defendant in another jurisdiction provided the district attorney is aware of such detention and has been diligent and has made reasonable efforts to obtain the presence of the defendant for trial. The Court of Appeals has held that in a post-readiness context, Subdivision 4[e] excludes delay resulting from the defendant’s detention in another jurisdiction of which the District Attorney is aware provided he has been diligent in attempting to obtain defendant’s return. People v. Anderson, 66 NY2d 529, 540 [1985]. The People need not exercise due diligence in attempting to locate a defendant who is attempting to avoid apprehension or prosecution. People v. Torres, 88 NY2d 928, 931 [1996], citing, People v. Luperon, 85 NY2d 71, 80 [1995].The First Department has held that the motion court properly charged the People with the period of time between the issuance of a bench warrant against defendant and his return following completion of a term of incarceration in Sullivan County [from September 16, 1992 to May 7, 1993]. See People v. Ramos, 230 AD2d 630 [App Div, 1st Dept 1996]. In the Ramos case, defense counsel notified the court and the District Attorney of the defendant’s incarceration. In that case the People had not sufficiently exercised due diligence to secure the defendant’s presence eventhough the People were put on notice of defendant’s incarceration. In cases involving an incarcerated defendant [in State or out of State], the common element of the courts’ analysis is whether the People had knowledge of defendant’s detention and whether the People were diligent in obtaining the defendant’s presence for trial. See People v. Gatling, 160 Misc 2d 886, 891 [Sup Ct, NY County 1994]["here the People had actual knowledge that the defendant was incarcerated in State prison, and therefore had an obligation to produce or least make diligent efforts to produce the defendant from State prison for trial"]; see also, People v. Donadeo, 44 Misc 3d 1202[A] [Crim Ct. Queens County 2014][defendant involuntarily returned on a warrant, having been incarcerated in Suffolk County; record was devoid of any allegation that the defendant's incarceration in another jurisdiction was brought to People's attention, period of delay due to defendant's absence is excludable]; see also, People v. Crosse, 52 Misc 3d 1224[A][Crim Ct, Bronx County 2016]["a plain reading of CPL 30.30[4][e] reveals that the People’s duty of due diligence is not triggered not by mere knowledge that defendant has been arrested, but by awareness that defendant is detained in another jurisdiction”].In the instant matter, the record is silent as to whether the People knew of the defendant’s arrest and subsequent incarceration in Westchester County. Had the People known about the new arrest, then they had an obligation to produce the defendant for her Bronx case. Additionally, there is no indication by defense counsel that he notified the court and the People of the defendant’s arrest, thereby triggering the People’s responsibility to secure her presence. See, People v. Crosse, 52 Misc 3d 1224[A] [Crim Ct, Bronx County 2016] [no authority cited that a defendant's arrest either locally or federally, "suffices to put the People on notice that he was being detained in another jurisdiction"]. We are similarly situated in the instant matter.On April 11, 2018, the matter was on the calendar in AP5 before Hon. Jeffrey Rosenblueth. The defendant failed to appear, no defense counsel was present for the defendant, and the court ordered a bench warrant As the minutes of this proceeding reflect defense counsel was not present, there is no record made in the Court that the defendant was actually incarcerated at that time. In the motion herein, defense counsel states that the defendant was not produced to AP5 for the calendar call. However, there is no mention that defense counsel ever notified the People or the Court that the defendant was incarcerated on that day on the record nor any offer by defense counsel that he had notified the People off calendar that the defendant was incarcerated in Westchester County commencing on January 31, 2018 until defendant’s release on August 24, 2018.The Court will note that if defense counsel had any knowledge that defendant was incarcerated during this period, defense counsel should have either notified the People in writing, or advance the case on the calendar in order for the People to be instructed to issue an Order to Produce. Further, the People, based on the record herein with the facts that defendant had prior contacts with Westchester County, although no obligation to do so without notice, should have had the forethought to inquire by running defendant’s rapsheet, if the defendant was not available due to an incarceration as she had previous contacts outside of New York City.As such the Court finds that the period between January 30, 2018 to April 11, 2018 is excludable.[CHARGEABLE TIME - 0 DAYS]Further, the Court finds that the period between April 11, 2018 to August 27, 2018 is excludable.[CHARGEABLE TIME - 0 DAYS]August 27, 2018 to August 29, 2018The defendant voluntarily returned on the warrant in this matter on August 27, 2018 and the Court adjourned the case to August 29, 2018 for possible disposition and based on the information that was available on that date of August 27, 2018 before the Court and the record being made by defense counsel, the Court requested the People to evaluate their 30.30 chargeable time and to see if there was any disposition to this matter that was available.[CHARGEABLE TIME - 0 DAYS]August 29, 2018 – September 27, 2018Defense counsel indicated that he was going to file a motion to dismiss. The Court set a motion schedule and adjourned the case to September 27, 2018 for Decision.[CHARGEABLE TIME - 0 DAYS]The Court finds that the People are charged a total of forty-one [41] days of 30.30 time. For the foregoing reasons, the Defendant’s motion to dismiss the accusatory instrument is DENIED.The foregoing constitutes the decision and order of the Court.Dated: September 27, 2018 Bronx, New York
