History of the Case The defendant was charged with criminal contempt in the second degree, P.L. §215.50 (3), a class A misdemeanor. It was alleged in sum and substance that on June 18, 2019 at 12:00 A.M. the defendant disobeyed a no contact order of protection issued by Judge Frederick G. Reed, an Ontario County Family Court Judge, by phoning the protected party three times and showing up at his house and walking in his driveway. The defendant was arraigned on November 6, 2019 during which he was represented by the assistant public defender. A not guilty plea was entered into the record. At that time the defendant was released on his own recognizance. The matter was adjourned for argument of motions on February 28, 2020. Subsequent to that date the court was fully shut down for about four months due to the Covid-19 pandemic and over the course of the year the court operated at reduced level due to the various pandemic protocols. Nevertheless, the main thrust of defense counsel’s omnibus motions was that the case should be dismissed on speedy trial grounds as being in violation of CPL §30.30 (1) (b). The case was on the court’s calender for February 3, 2021 to determine the status of same. Whereupon the matter was adjourned pending a written decision on the defendant’s speedy trial motion. Facts of the Case It is un-controverted that the accusatory instrument was dated June 22, 2019.Furthermore, on or about July 12, 2019, the court issued an arrest warrant for the defendant. That on the August 8, 2019 a single call was made to the defendant by the Webster Police Department advising him of the said warrant. Despite said phone call the defendant failed to turn himself in. However, on November 04, 2019, the defendant was arrested by the Ontario County Sheriff’s Office at the request of the Webster Police Department. Upon being taken into custody the defendant was issued an appearance ticket to appear at the said arraignment on November 6, 2019, at which time the defendant did appear. Defense counsel argues that the time between the filing of the accusatory instrument with the court, i.e. June 23, 2019, which the court will assume arguendo to be the date of filing as June 22, 2019 was a Sunday, and September 23, 2019, ninety one days had gone by. During that time the only action taken by the police was the August 8, 2019 phone call. The People first announced their readiness for trial at the arraignment on November 6, 2019. That between the date of filing of the accusatory and the date of the arrest one hundred thirty four days had elapsed. The defense argues that because of the length of time it took the People to present the defendant for arraignment on the charge herein, the People were in fact in violation of CPL §30.30 (1) (b). Said provision requires the People to be ready for trial within “ninety 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 of more than three months and none of which is a felony.” The prosecution argues the lapse in time between the date of filing of the accusatory instrument and the date of arrest should be excluded from the said speedy trial calculation, except for the nineteen days between the filing of the accusatory and the issuance of the arrest warrant, because the defendant was willfully avoiding prosecution. Nevertheless, the facts as presented herein are not in dispute. What remains is a question of law. Thus no hearing on the issue of due diligence is required. Finally, no Certificate of Compliance/Statement of Readiness as required by CPL §145.50 (3) was ever filed with the court. Issue Presented. Did the People fail to use due diligence in obtaining the presence of the defendant during the time between the filing of the accusatory with the court and the date of the arraignment in violation of the statutory speedy trial requirements of CPL §30.30 (1) (b)? Does the new discovery law apply to cases initiated prior to January 1, 2020? Legal Analysis Due Diligence. It has been held by the Court of Appeals that “In the CPL 30.30 context, the People must ordinarily identify the exclusions on which they intend to rely, and the defense must identify any legal or factual impediments to the use of these exclusions.” (People v. Luperon, 85 NY2d 71,78, 623 N.Y.S.2d735,739 [1995]). In the case herein the People fail to allege any particular reason why the phone call of the police on August 8, 2019 was the only attempted contact with the defendant since the issuance of the arrest warrant on July 12, 2019. Nor is there any explanation as to why another eighty eight days went by before the defendant was arrested by the Ontario County Sheriff’s Department and turned over to the Webster Police Department. As previously stated by then one hundred thirty four days elapsed since the commencement of the criminal case on June 23, 2019. In fact, the phone call by the Webster Police to the defendant demonstrated knowledge of the defendant’s phone number. Nor is there any dispute as to knowledge of the defendant’s address. CPL §30.20 §(c) (i) states that “In computing the time within which the people must be ready for trial pursuant to subdivisions one and two of this section, the following periods must be excluded: the period of delay resulting from the absence or unavailability of the defendant. 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” The People cannot reasonably allege the defendant was absent or unavailable, since as stated the police knew how to contact him and where he resided. Nor was any allegation that the defendant did anything to avoid apprehension or prosecution presented to the court. A mere failure to appear is not the equivalent of an attempt to avoid apprehension or prosecution. The latter would require some specific action on the part of the defendant, rather than simply inaction on his part. Lastly there is no credible information that would lead the court to believe that despite the fact that the police were aware of the defendant’s location, his presence in court could not be obtained by due diligence. On the contrary the lack of action on this case was the exact opposite of due diligence. In deciding to dismiss a felony indictment, the Appellate Division, 3rd Department held on an appeal by the defendant that “Here, the defendant met his initial burden on his motion by demonstrating that the People failed to declare their readiness for trial within the time required by the statute. The burden then shifted to the People to demonstrate that they were ready for trial on a timely basis because a sufficient portion of the time between commencement and readiness should be excluded from the calculation (see People v. Luperon, 85 NY2d 71, 77-78, 623 N.Y.S.2d 735, 647 N.E.2d 1243; People v. Price, 61 AD3d 127, 129, 873 N.Y.S.2d 327). The People did not carry this burden, however, as they failed to prove either that the defendant was attempting to avoid apprehension or that his location could not be determined by due diligence, a necessary predicate for an exclusion based upon the defendant’s absence.” People v. DeVore, 65 AD3d 695,696, 885 N.Y.S.2d 497, 499-500 [2009]). New Discovery Law. Lastly, it cannot be ignored that as of January 1, 2020 the requirements necessary for the People to be able to announce readiness for trial changed. The law regarding readiness for trial is set out in CPL §§30.30 [5] and [5-a]1. See also CPL §245.50 (3). The amended law, which imposes additional requirements on the People in order to indicate a readiness for trial, would apply to this case even though the People’s announcement of their readiness to trial was made prior to the new discovery law. “The new laws do not invalidate the 2019 statement of readiness, but they do redefine what constitutes a statement of readiness going forward (id.; Accord People v. Villamar, ____ Misc 3d ____ &mdash, ____ N.Y.S. 3d ____ [2020]; 2020 NY Slip Op. 20236, 2020 WL 5667173, *3 (“[t]here was nothing flawed or invalid about the certificate of readiness when it was filed in 2019. What has happened is that the Legislature has reset the People’s readiness status by tying it to the fulfillment of their obligations under the discovery laws”). (People v. Mashiyach, 70 Misc 3d 456,461, 135 N.Y.S.3d 610,614 [2020]). Again to date the People have not filed a Certification of Compliance/Statement of Readiness with the court. Nevertheless, the lack of due diligence by the People was evident at the time of the defendant’s arrest on November 4, 2019. Thus this court need not rule on what times, if any, should be chargeable to the People or the defense after that date. Conclusion. The People were not ready for trial within the statutory time of ninety days as required for a class A misdemeanor. That the time between the filing of the accusatory instrument and the date of the arrest of the defendant, under the circumstances presented herein, must be charged to the People, because of their failure to establish that the defendant’s presence for trial could not be obtained by due diligence during that time, despite the fact that his location was known. As a result, the charge of criminal contempt in the second degree, P.L. §215.50 [3] is hereby dismissed pursuant to CPL §30.30 [1] [b]. This constitutes the decision and order of this court. Dated: February 11, 2021
