People v. Figueras

Defendant filed a Notice of Motion, dated February 9, 2021, seeking an order dismissing the criminal summons and information on the following grounds: 1) that the criminal summons was not properly served in accordance with the Poughkeepsie City Code; 2) that defendant’s right to a speedy trial has expired pursuant to C.P.L. §30.30; and 3) that the matter should be dismissed in the interest of justice pursuant to C.P.L. §170.40. The defendant’s motion is supported by the affirmation of Sean P. O’Fallon, Esq., dated February 9, 2021, the affidavit of Joel Figueras, dated February 9, 2021, and Exhibits A-C. The People have opposed the motion supported by the affirmation of Sarah N. Wilson, Esq., Assistant Corporation Counsel, dated April 13, 2021, the affidavit of Kathleen Rodriguez, dated April 13, 2021, together with Exhibits A-F. Defendant has filed the reply affirmation of Sean O’Fallon, Esq., dated May 4, 2021, together with Exhibits A-C, in further support of his motion and in reply to the People’s opposition. Now, having read and deliberated on the defendant’s motion, the People’s opposition, and defendant’s reply, the Court hereby finds and determines the motion as follows: 1. SERVICE: Defendant argues that dismissal is required because the defendant was not properly served with the three (3) Notices of Violation and Order to Abate. O’Fallon affirmation, dated February 9, 2021, p.2 6-13. Citing Poughkeepsie City Code §12-34, Defendant contends that since he was served by nail and mail, then the People were required to mail him notice by certified mail return receipt requested the same day. And since the mailing was not made until four (4) days later and not done “return receipt requested”, then service was not properly effectuated and the matter must be dismissed. In opposition, the People argue that Poughkeepsie City Code §12-34 has no application here. Instead, the People contend that service for notices to abate are governed by Chapter 6 [specifically §6-28, and §6-39(p)]. Toward this end, the People highlight the affidavit of Kathleen Rodriguez (Administrative Assistant for the Building Department) in support of its claim that service was properly effectuated and in full compliance with the statutory service requirements in that all three (3) Notices of Violation were sent to the Defendant via certified mail, return receipt requested. Wilson affirmation, dated April 13, 2021, 6-8; Exhibit 1. In the alternative, the People argue that it has met its burden under the State Uniform Code; and that because the Defendant acknowledged the various violations to which the Notices of Violations were attached as emails, he cannot now argue lack of service. Wilson affirmation, dated April 13, 2021, 10. In reply, Defendant asserts that even if service is governed by Poughkeepsie City Code §6-28 — as the People argue — service must be accompanied by “certified mail, return receipt requested.” O’Fallon affirmation, dated February 9, 2021, p. 2-3, 5-12. Here, service was only effectuated by “certified mail”, as evidenced by even the People’s Exhibits, and there is no evidence that “return receipt” was requested for any of the notices. Likewise, the USPS website does not indicate that a “return receipt” was paid for or requested for any of the notices sent to Defendant. As such, Defendant argues that the Information must be dismissed on the grounds of lack of personal jurisdiction for failure to comply with statutory services requirements. This Court agrees. Service was not properly effectuated in accordance with the law. Notwithstanding the People’s arguments, the evidence submitted by even the People fails to support that the certified mailings were sent by “return receipt requested” in accordance with Poughkeepsie City Code §6-28. Moreover, the People’s argument that Defendant acknowledged the notices via email exchange is not the functional equivalent to an appearance on the matter, or an answer that would waive personal jurisdiction objections. 2. SPEEDY TRIAL: Defendant seeks dismissal of the action on the grounds that the People have violated Defendant’s right to a speedy trial under C.P.L. §30.30. O’Fallon affirmation, dated February 9, 2021, 14-21. A defendant seeking dismissal based upon speedy trial grounds meets his initial burden by simply “alleging only that the prosecution failed to declare readiness within the statutorily prescribed time period.” People v. Luperon, 85 NY2d 71, 77-78 (1995); People v. Goode, 87 NY2d 1045, 1047 (1996). In turn, once the motion is made, the burden shifts to the People to show that the delay was not chargeable to the People or that time should be excluded, and if the People fail to controvert the factual basis for the motion by identifying statutory exclusions on which they intend to rely, the motion to dismiss must be summarily granted. People v. Santos, 68 NY2d 859, 861 (1986); see, People v. Goode, supra. Being “ready for trial” comprises of two elements: 1) either a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, and 2) the People must in fact be ready to proceed at the time they declare their readiness. People v. Kendzia, 64 NY2d 331, 337(1985); People v. Chavis, 91 NY2d 500, 505 (1998). Here, the defendant has met his burden of proof in alleging that the People have failed to declare readiness in accordance with Article 30 of the Criminal Procedure Law. For the charges in this case — which constitute a violation — the People must be ready for trial within thirty days of the commencement of the criminal action. C.P.L. §30.30(1)(d). Defendant contends that more than thirty (30) days have passed since the action was commenced before the People finally announced ready for trial. Defendant relies upon People v. Eckert, 117 Misc 2d 504 (Syracuse 1983) for the proposition that the action was commenced (and the speedy trial clock began) on the date the summons was issued by the Court which was accompanied by an accusatory instrument filed by the People. As such, since more than thirty (30) days have passed since the commencement of the action, the matter must be dismissed pursuant to C.P.L. §30.30. O’Fallon affirmation, dated February 9, 2021, 14-21. Towards this end, Defendant contends that the matter was commenced on February 11, 2020 (the date the criminal summonses were issued); he was arraigned on October 6, 2020, and that the People have yet to declare that they are ready for trial. O’Fallon affirmation, dated February 9, 2021, 4, 19. The Defendant further maintains that the first time the People have actually indicated any form of readiness for trial is in their opposition papers filed to Defendant’s Motion to Dismiss, dated April 13, 2021. O’Fallon affirmation, dated May 4, 2021, 18. Based upon the Defendant’s averments, the burden shifts to the People. In opposition, the People argue that since Defendant has never been “formally arraigned,” Defendant’s motion to dismiss is premature because pursuant to C.P.L. §170.30 speedy trial motions must be made after arraignment. Wilson affirmation, dated April 13, 2021, 13-14. In the alternative, the People contend the arraignment took place on September 22, 2020, after the Court granted defense counsel’s request for an adjournment of the September 8, 2020, appearance. Wilson affirmation, dated April 13, 2021, 14. The People contend all of the time since March 3, 2020, is excludable because all adjournments that occurred after Defendant retained counsel have been on consent of all the parties. Finally, the People argue that the defense was not impaired or prejudiced in any way by delays occasioned, that charging the People would have negative implications that would be far reaching. Wilson affirmation, dated April 13, 2021, 22-23 Defendant’s motion to dismiss on the grounds that the People violated his right to a speedy trial is granted. The Sixth Amendment guarantees a criminal defendant the right to a speedy and public trial. (U.S. Const VI Amend). In computing the time within which the People must be ready for trial, Article 30 of the Criminal Procedure Law governs. In this particular action, the speedy trial statute provides that the People must be ready for trial within, “thirty days of the commencement of a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a violation, and none of which is a crime.” C.P.L. §30.30 (1)(d). If the People are not ready for trial, then a motion to dismiss made pursuant to C.P.L. §170.30(1)(e) must be granted. C.P.L. §30.30 (1)(a). Here, the following occurred: January 29, 2020. Here, the action was commenced and speedy trial clock began on January 29, 2020, when the People filed a summons and information against this Defendant. People v. Keen Equities, 36 Misc 3d 138(A)(App Term, 2d Dept. 2012)(For purposes of speedy trial calculations, an action is commenced upon the filing of the accusatory instrument). Indeed, the People offer no statutory authority or precedent in support of their claim that the action commences at any other time. A “summons” is defined as the “process of a local criminal court or superior court, more fully defined in section 130.10, requiring a defendant to appear before such court for the purpose of arraignment upon an accusatory instrument filed therewith by which a criminal action against him has been commenced.” C.P.L. §1.20(27). In People v. Eckert, the Court held that there were critical distinctions between a criminal summons (here) and an appearance ticket. “A criminal summons may be issued only by a court and only upon the basis of an information or complaint which has been lodged with such court. (Bellacosa, Practice Commentary, McKinney’s Cons. Laws of NY, Book 11A, C.P.L. §130.10, p. 165). An appearance ticket, on the other hand, is issued without court directive and prior to the filing of an information. Furthermore, an appearance ticket is served upon a defendant with its issuance; whereas a criminal summons as defined in C.P.L. §130.10 is served upon the defendant at a later date after the court subscribes same.” People v. Eckert, supra at 505. February 11, 2020. The time between the date the summons and accompanying information was filed (January 29, 2020) and the time that the Court actually signed the summons (February 11, 2020) is excludable time for purposes of speedy trial calculations, however. This is because between January 29, 2020 — February 11, 2020, the matter was under consideration by the Court. C.P.L. §30.30 (4)(a). March 3, 2020. The time between the date that the summons was signed by this Court (February 11, 2020) and the date the summons directed the defendant to appear before the Court (on March 3, 2020, at 10:30 A.M.) is excludable time for purposes of speedy trial calculations as well.¹ This is because the period prior to the defendant’s actual appearance for arraignment [where defendant has been directed by the Court to appear, pursuant to C.P.L. §120.20(3)] on a designated date is excludable time for purposes of speedy trial calculations. C.P.L. §30.30(4)(i); C.P.L. §120.20(3); C.P.L. §130.20. Since the People filed the accusatory instrument in this Court, it was proper to make the summons returnable here [C.P.L. §130.20], and it also made the time between the signing of the summons and the scheduled arraignment excludable time (February 11, 2020 — March 3, 2020). C.P.L. §30.30(4)(I). March 3, 2020. Defendant’s arraignment was scheduled for this date, but the Defendant failed to appear. While the Court had the authority to issue a warrant of arrest on the grounds that the defendant failed to appear after service of the summons upon him, the Court elected not to do that. C.P.L. §130.50.² The matter was put over for March 17, 2020. As such, this time (March 3 — March 17) is excludable time for purposes of speedy trial calculations, as the delay resulted from the absence or unavailability of the defendant. C.P.L. §30.30(4)(c)(I). March 17, 2020. Defendant’s arraignment was scheduled again, but was postponed until September 8, 2020, due to COVID-19.³ Therefore, this time (March 17, 2020 — September 8, 2020) is excludable time for purposes of speedy trial calculations, as it was occasioned by exceptional circumstances, to wit: a worldwide pandemic. C.P.L. §30.30 (4) (g). September 8, 2020. Defendant’s arraignment was scheduled, but the Defendant’s attorney requested an adjournment (on consent) because the attorney was out-of-town. The matter was put over for September 22, 2020. As such, this time (September 8 — September 22) is excludable time for purposes of speedy trial calculations as the delay resulted from a continuance granted by the Court at the request of defendant’s counsel. C.P.L. §30.30(4)(b). September 22, 2020. — Defendant’s arraignment was scheduled, but the Defendant failed to appear. The matter was put over for October 6, 2020. The time between September 22 — October 6 is excludable time for purposes of speedy trial calculations, as the delay resulted from the absence or unavailability of the defendant. C.P.L. §30.30(4)(c)(i). October 6, 2020. Defendant was arraigned through his counsel Sean O’Fallon, Esq., at which time counsel asked to have the defendant’s appearance waived. Despite the People’s claim that the defendant has never been “formally arraigned” on the charges because defendant’s appearance was waived (Wilson affirmation, dated April 13, 2021, p. 4-5, 13-14), this Court finds otherwise. The Defendant was arraigned on October 6, 2020, when the Court granted counsel’s request to have the defendant’s appearance waived, pursuant to this Court’s statutory authority finding that good cause existed to waive the Defendant’s appearance at arraignment since the Defendant did not reside in Poughkeepsie, but in New York City where there was a high rate of Covid-19 infections, and the world was in the midst of a global pandemic. C.P.L. §170.10 (1)(b).⁴ Accordingly, defendant was properly arraigned and the instant motion to dismiss made pursuant to C.P.L. §170.30 is properly before this Court. C.P.L. §§30.30 and 170.30. There is no evidence, however, that the People announced their readiness for trial on the record or in writing at that time. Likewise, there was no Certificate of Compliance filed with the Court. C.P.L. §245.50. The matter was adjourned until November 17, 2020. As such, the time between October 6 — November 17, 2020, totals forty-two (42) days and is chargeable to the People and calculated for purposes of the instant speedy trial motion to dismiss. November 17, 2020. The matter was scheduled for a status conference, and the Defendant’s appearance was waived. There was no announcement of readiness by the People, and the matter was adjourned until December 15, 2020.Likewise, there was no Certificate of Compliance filed with the Court. C.P.L. §245.50. As such, the time between November 17 — December 15, 2020, totals twenty-eight (28) days and is chargeable to the People and calculated for purposes of the instant speedy trial motion to dismiss. December 15, 2020. The matter was scheduled for purposes of a disposition or the filing of motions, and Defendant’s appearance was waived. There was no announcement of readiness by the People and the matter was adjourned to January 26, 2021.Likewise, there was no Certificate of Compliance filed with the Court. C.P.L. §245.50. The time between December 15, 2020 — January 26, 2021, totals forty-two (42) days and is chargeable to the People and calculated for purposes of the instant speedy trial motion to dismiss. January 26, 2021. The matter was scheduled for further proceedings via virtual conference. There was no announcement of readiness by the People and the matter was adjourned to February 23, 2021. However, on February 9, 2021, the Defendant filed the instant motion to dismiss via Electronic Document Delivery System (EDDS). The time between January 26, 2021 — February 9, 2021, totals thirteen (thirteen) days and is chargeable to the People. As such, these thirteen (thirteen) days are calculated for purposes of the instant speedy trial motion to dismiss. However, the time since the Defendant’s instant motion to dismiss was filed (February 9, 2021 — present) is excludable time for purposes of a speedy trial calculation. C.P.L. §30.30(4)(a). One hundred twenty-five (125) days have passed since the commencement of the action. The People have failed to show the delay was not chargeable to the People or that this time is excludable. Instead, the People make conclusory claims with no supporting evidence (minutes, emails, or correspondence) that the adjournments were on consent. If the People fail to controvert the factual basis for the motion by identifying statutory exclusions on which they intend to rely, the motion to dismiss must be summarily granted. People v. Santos, 68 NY2d 859, 861 (1986); see, People v. Goode, supra. Here, there has been no statement of readiness by the People in open court, transcribed by a stenographer, or recorded by the clerk or any written notice of readiness sent by the People to both defense counsel and the appropriate court clerk, other than the statement of readiness set forth in the People’s opposition papers, dated and filed April 13, 2021 — nearly fifteen (15) months after the matter was commenced. See, People v. Kendzia, 64 NY2d 331, 337(1985); People v. Chavis, 91 NY2d 500, 505 (1998). 3. CLAYTON MOTION: That branch of defendant’s motion seeking dismissal in the interest of justice is denied. Criminal Procedure Law §170.40 (1) gives a Court the authority to dismiss an information in the interest of justice even though there may be no basis for dismissal as a matter of law, but where it should be dismissed as a matter of judicial discretion by the existence of some other compelling factor, consideration or circumstance which clearly demonstrates that the conviction or prosecution of the defendant would constitute or result in injustice. C.P.L.§170.40 (1). Although the decision to dismiss an information lies within the discretion of the trial judge, that discretion is not absolute or uncontrolled. People v. Wingard, 33 NY2d 192 (1973). The statute states that a court must find some compelling factor, and where a lower court fails to state such compelling factors, dismissal is not warranted. Among the factors to consider both individually and collectively are the following: a) The seriousness and circumstances of the offense; b) The extent of harm caused by the offense; c) The evidence of guilt, whether admissible or inadmissible at trial; d) The history, character and condition of the defendant; e) Any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant; f) The purpose and effect of imposing upon the defendant a sentence authorized for the offense; g) The impact of a dismissal on the safety or welfare of the community; h) The impact of a dismissal upon the confidence of the public in the criminal justice system; i) Where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; j) Any other relevant fact indicating that a judgment of conviction would serve no useful purpose. C.P.L.§170.40 (1)(a-j). In weighing each of the factors individually and collectively as outlined in the statute, and the arguments set forth by Defendant, this Court finds that dismissal is not warranted under the circumstances. C.P.L.§170.40. WHEREFORE, based upon the foregoing, it is now ORDERED, that Defendant’s motion to dismiss on grounds that service of the Notices of Violation was never properly effectuated is GRANTED; and it is further ORDERED, that Defendant’s motion to dismiss on grounds that his speedy trial rights have been violated is GRANTED; and it is further ORDERED, that Defendant’s motion seeking dismissal in the interest of justice pursuant to C.P.L. §170.40, is DENIED. SO ORDERED. Dated: July 26, 2021