Defendant is charged by misdemeanor information with one count of Bail Jumping in the Third Degree (P.L. §215.55). Defendant, pro se, moves to dismiss the accusatory instrument on statutory and constitutional speedy trial grounds. She also seeks a Clayton hearing. SPEEDY TRIAL The crime of Bail Jumping in the Third Degree is a class A misdemeanor, and pursuant to CPL §30.30 (1)(b), the prosecution was required to announce its readiness for trial within 90 days of the commencement of the criminal action. The point of commencement of an action for speedy trial purposes is the filing of the first accusatory instrument (People v. Lomax, 50 NY2d 351 [1980]; see also People v. Stirrup, 91 NY2d 434 [1998]). The actual date of filing is not includable in the calculation (People v. Stiles, 70 NY2d 765 [1987]). The People filed the misdemeanor information in White Plains City Court on February 18, 2016 and as such, that is the date of the commencement of the action (See People v. Smietana, 98 NY2d 336 [2002]; People v. Hauben, 12 Misc 3d 1172A [Dist. Ct. Nassau 2006]; People v. Griffen, 141 Misc 2d 627 [Crim. Ct. Queens Cty. 1988]. On July 21, 2016, the defendant was returned on the warrant and arraigned. The People announced their readiness at arraignment, 154 days after the filing of the accusatory. CPL §30.30(4)(c)(i) provides that in computing the time within which the People must be ready for trial the period of delay resulting from the absence or unavailability of the defendant is excluded. A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence. A defendant must be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence (See People v. Devore, 65 AD2d 695 [2d Dept. 2009]). On this motion, defendant argues that the People were not ready for trial within ninety days of the commencement of the action. The substance of defendant’s argument focuses on post-readiness delay. She argues that on September 14, 2016, her prior counsel filed an omnibus motion requesting several hearings, including a Dunaway and Clayton hearing. She argues (without providing a date or transcript) that the People consented to pre-trial hearings on the record, including a Clayton hearing. She also argues that in 2016 (without providing a date or transcript) that White Plains City Court Judge Jo Ann Friia granted all pre-trial hearings on record in open court. She further argues that after the White Plains City Court judges recused themselves, the matter was transferred without any hearings being held. Similarly, the Yonkers City Court did not schedule any hearings either. Defendant argues that since the case has been transferred to this court in February 2018, she had requested that a Clayton hearing be held. She argues that the People have thwarted her efforts to secure the scheduling of pre-trial hearings by failing to secure the transcripts that would seemingly demonstrate that all pre-trial hearings were granted unopposed. Defendant maintains that the People’s failure to settle the record and schedule the Clayton hearing have violated her statutory and constitutional speedy trial rights. The People oppose the motion. The People argue that they are under no obligation to settle the record or provide the defendant with stenographic minutes of an all purpose court proceeding. The People argue they ordered minutes from multiple proceedings based upon defendant’s statement that she believed a Clayton hearing was granted. The People state the minutes from the October 14, 2016 proceeding demonstrate that they never consented to a Clayton hearing but had in fact filed motion papers opposing the granting of a Clayton dismissal and hearing. The issue on the Clayton hearing remained pending until this Court rendered a Decision and Order on July 11, 2018 denying the defendant’s Clayton motion. The People argue that there is no outstanding Clayton issue and that all the time from the filing of the motion until this Court rendered a decision is excludable. The Court agrees. The period of September 14, 2016 to July 11, 2018 must be excluded as the period during which defendant’s motion was “under consideration by the court” (People v. Williams, 2008 NYLJ LEXIS 6229 [Crim Ct. New York Co. 2008]) While the substance of defendant’s speedy trial argument focuses on post readiness delay, this Court must address the pre-readiness delay in light of defendant’s motion to dismiss on both statutory and constitutional speedy trial grounds. Where a defendant moves to dismiss an information on the grounds specified in C.P.L. §30.30 and includes in the moving papers sworn allegations that there has been an unexcused delay in excess of the statutory maximum, the motion must be summarily granted unless the People controvert the factual basis for the motion (See People v. Santos, 68 NY2d 859, 861 [1986]); C.P.L §210.45; C.P.L. §170.45. Once a defendant has shown the existence of an unexcused delay the burden of showing the time should be excluded falls upon the People (Santos at 861). Moreover, pursuant to CPL §210.45, unless the People’s opposition conclusively refutes defendant’s motion “by unquestionable documentary proof” a defendant’s motion may not be denied without a hearing being conducted (CPL §210.45[5][c]; People v. Allard, 28 NY3d 41 [2016]). The People need not exercise due diligence in attempting to locate a defendant who is attempting to avoid apprehension or prosecution (People v. Luperon, 85 NY2d 71, 80 [1995]). In the case at bar, the defense papers are lacking sworn allegations from the defendant herself attesting to her whereabouts during the period of time the arrest warrant for Bail Jumping in the Third Degree remained outstanding. The substance of defendant’s arguments focus on post readiness delay. The People’s opposition papers similarly focus on exclusions for post-readiness delay. However, the People offer no specific facts about the steps the White Plains Police Department took to locate the defendant’s whereabouts from the filing of the accusatory instrument on February 18, 2016 to her return on the warrant on July 21, 2016, 154 days after the commencement of the action. Since there are no sworn allegations of fact from the defendant and documentary factual allegations in the moving papers from which the Court may determine whether the defendant’s location was unknown to the People or whether the defendant attempted to avoid apprehension during the period from the issuance of the arrest warrant until its execution, the Court directs that a CPL §30.30 hearing be held to determine whether the People have satisfied their statutory obligation pursuant to CPL §30.30(1)(b) (People v. Davis, 205 AD2d 697 [2d Dept 1994]). At the hearing, the People will be required to demonstrate that the defendant’s location was unknown to them and that the defendant attempted to avoid apprehension or prosecution during the period the arrest warrant was pending in order to have this time found excludable under CPL 30.30(4)(c)(ii). Should the People demonstrate at the speedy trial hearing that the period of pre-readiness delay is excludable, the Court will address the remainder of defendant’s post-readiness and constitutional speedy trial arguments in a Decision and Order following the hearing. CLAYTON HEARING The Court adheres to its Decision and Order dated July 11, 2018. The motion for a Clayton hearing is denied. This constitutes the Decision and Order of this Court. Dated: September 9, 2019 Mount Vernon, New York
