The following papers numbered 1 to 2 were read and considered on the defendant’s motion to dismiss pursuant to CPL Article 170, to correct improper joinder being a legal impediment to further prosecution pursuant to CPL §170 and such other and further relief the court deems just and proper. Papers Numbered Notice of Motion and Affidavits Annexed 1 Affirmation in Opposition 2 DECISION AND ORDER The defendant is currently charged with Criminal Possession of a Weapon in the Fourth Degree (PL §265.01[2]), Menacing in the Second Degree (PL §120.14 [1]), Assault in the Third Degree (PL §120. 00 [1]); Harassment in the Second Degree (PL §240.26 [1]) and Criminal Possession of a Controlled Substance in the Seventh Degree (PL §220.03). The defendant, through counsel, moves to dismiss the accusatory instrument as being untimely. The defendant alleged that the case was set for trial on October 18, 2021, two hundred twenty (220) days after the defendant’s arraignment. The defendant further alleged that on October 18, 2021, the People filed a superseding misdemeanor information which added a count of Criminal Possession of a Controlled Substance (PL §220.03) and changed the place of occurrence from 93 Van Cortland Park Avenue to “the vicinity of 93 Van Cortland Park Avenue”. The defendant also asserted joinder was improper as there were two alleged criminal transactions — one inside 93 Van Cortland Park and the other outside 93 Van Cortland Park. The People alleged that on or around April 1, 2020, the defendant and his wife began a contentious breakup after the defendant allegedly refused to stop selling drugs from their home at 93 Van Cortland Park Avenue. During the argument, the defendant’s wife allegedly asked him to vacate, and the police were notified. After they responded, they allegedly recommended the parties stay in separate locations. The defendant’s wife vacated the residence to stay with her sister and on April 11, 2020, enlisted the help of her sister and son to collect her belongings from the apartment. The People alleged that on April 11, 2020, the defendant appeared at the door “high and agitated” and was pacing back and forth shouting “this is my house.” The defendant’s wife allegedly advised the defendant she was there to pick up a few things and went to the bedroom to retrieve her belongings. Shortly thereafter, the defendant allegedly shoved his sister-in-law causing her head to impact the wall. The defendant then allegedly pointed a handgun at his sister-in-law and threatened to kill her. The People contend that while she was calling the police, the defendant retreated to a back room. The complaining witness allegedly provided the police with a description of the defendant and his name. When the police arrived, they allegedly found the defendant outside and in front of 91 Van Cortland Park Avenue. The People alleged this building was directly next to 93 Van Cortland Park Avenue and that the defendant matched the description provided. Further, the police allegedly recognized the defendant based on prior interactions with him and placed him under arrest. Following a search incident to arrest, the police allegedly found two clear plastic bags in the defendants’ pocket which contained a white powdery substance. The People maintain this substance was later determined to be cocaine through a laboratory analysis. Simultaneously, the police entered 93 Van Cortland Park Avenue and following defendant’s wife consent, conducted a search of the premises which they allegedly found a loaded 380 caliber Ruger handgun inside a Timberland boot. On or about April 13, 2020, the defendant was produced in Yonkers City Court, Legal Aid was assigned, and the defendant was arraigned. Time pursuant to CPL §180.80 was waived and the case was scheduled for May 18, 2020. Prior to the events leading to the defendant’s arrest, on March 7, 2020, Governor Andrew Cuomo declared a state of emergency in Executive Order 202 in response to the effects of the COVID-19 pandemic on the State of New York. (Executive Order Cuomo No 202 [9 NYCRR 8.202]). Subsequently, on March 20, 2020, Governor Cuomo enacted Executive Order 202.8, tolling “any specific time limit for the commencement, filing or service of any legal action, notice, motion, or other process or proceeding, as prescribed by…the criminal procedure law…until April 19, 2020.” Executive Order 202.8 [9 NYCRR 8.202.8]. The Executive Order as it pertained to speedy trial time was continued on April 7, 2020, to May 7, 2020 (Executive Order [Cuomo] No. 202.14 [9 NYCRR 8.202.14]), June 6, 2020 (Executive Order [Cuomo] No. 202.28 [9 NYCRR 8.202.28]), and July 6, 2020, Executive Order [Cuomo] No. 202.38 [9 NYCRR 8.202.38]). On July 6, 2020, the executive order was continued until August 5, 2020, providing in pertinent part, “Section CPL §30.30 of the Criminal Procedure Law, is hereby modified to require that speedy trial time limitations remain suspended until such time as petit criminal juries are reconvened or thirty days, whichever is later.” Executive Order [Cuomo] No. 202.48 [9 NYCRR 8.202.48]. On or about August 5, 2020, the executive order was continued until September 4, 2020. Executive Order [Cuomo] NO. 202.55.1 [9 NYCRR 8.202.55.1]). On September 4, 2020, the Executive Order was extended to October 4, 2020, and modified such “that speedy trial time limitations remain suspended in a jurisdiction until such time as petit criminal juries are reconvened in that jurisdiction.” Executive Order [Cuomo] No. 202.55.1 [9 NYCRR 8.202.55.1]). On or about October 5, 2020, Executive Order 202.67 further amended the CPL 30.30 modifications and specified that CPL §30.30 time remained tolled for unindicted felonies1 until January 2, 2021. On December 30, 2020, Executive Order 202.87 again tolled CPL §30.30 time for unindicted felonies for the time in which they proceed upon a felony complaint until January 29, 2021. This tolling was subsequently extended by a series of Executive Orders until Executive Order 202.106 which was issued on May 6, 2021, and which indicated that the current suspension of CPL §30.30 would remain in effect until May 23, 2021 and would then be rescinded. As speedy trial time was tolled for unindicted felonies from March 20, 2020 to May 23, 2021, no time is chargeable to the People from when the defendant was arraigned on the felony complaint on April 13, 2020 until the superseding information was filed on March 10, 20212 The People acknowledge from the defendant’s arraignment on the superseding misdemeanor information on March 11, 2021, that each adjournment until June 4, 2021 was at the People’s request. This represents a total of eighty-three (83) days. The People asserted that on May 25, 2021 they requested an adjournment to June 4, 2021, but the defendant requested the additional time to June 15, 2021. Accordingly, the time between June 5, 2021 to June 15, 2021 is excludable as it was made at the defendant’s request. “The defendant may not request an adjournment and at the same time disclaim any waiver of delay.” People v. D’Aquino, 163 Misc.2d 788, 291 [Yonkers City Ct 1995]; see also CPL §30.30[4] [b]. This time is excluded. The People also acknowledged that they requested an adjournment from June 15, 2021 to June 17, 2021 and no exception applies. Accordingly, two (2) additional days are chargeable to the People. On June 17, 2021, the People declared ready and filed their certificate of compliance. Accordingly, no time beyond this date is chargeable to the People.3 The People argue that the second superseding misdemeanor information, filed on October 8, 2021, enjoys the same excludable time periods under CPL §3 0.3 0 that apply to the first two accusatory instruments in this case. The defendant does not contest the long-standing law that when a subsequent accusatory instrument is filed, the periods deemed excludable under the first accusatory instrument remain excludable with respect to the superseding instrument, provided the superseding instrument can be said to be part of the same criminal action. See, People v. Sinistaj, 67 N.Y.2d 236 [1986]. The court in Sinistaj said “we perceive no logical reason why, when a subsequent indictment is related back to the commencement of the proceeding for the purposes of applying the six-month limitation prescribed by CPL §30.30 [1] [a], it should not also be related back for the purpose of computing the time to be excluded from that limitation” reasoning that [a] contrary holding…would offend the accepted rule of construction that all parts of a statute should be read together to determine the fair meaning of the whole.” Id. at 239. A criminal action commenced with the filing of an accusatory and “includes the filing of all further accusatory instruments directly derived from the initial one.” CPL §1.20 [16] [b]. Accordingly, when an accusatory supersedes an original instrument, for purposes of CPL §30.30, provided the second instrument “directly derives” from the initial instrument, the date of commencement is the date of the original accusatory instrument. The CPL fails to define “derive” and accordingly, this term should be given its ordinary meaning which means to “trace” or “originate”. People v. Osgood, 52 N.Y.2d 37, 44 [1980]. This principle applies even if the subsequent accusatory instrument incorporates additional charges that were not contained in the original accusatory. People v. Farkas, 16 N.Y.3d 190, 193 [2011]. As this was the case in the instant matter, the new incident is traceable to and originates from the same incident that gave rise to earlier accusatory instruments. As the law is clear, the mere addition of a charge does not prevent the subsequent accusatory from relating back to the original for CPL §30.30 purposes. As a result, only eighty (85) days are chargeable to the People and there are no speedy trial grounds for dismissing this case. To the extent that the defendant argued that the Criminal Possession of a Controlled Substance in the Seventh Degree (hereinafter “CPCS7″) charge was filed in an untimely manner, this branch of the defendant’s motion is denied. The statute of limitations for criminal possession of a CPCS7 charge is two years (CPL §30.10 [2] [c]. As the People’s third accusatory instrument was filed on October 8, 2021, it is within the two (2) years provided for by the statute. To the extent the defendant’s motion sought to dismiss in the interests of justice pursuant to CPL §170.40[1], this application is also denied. A court has discretion to dismiss in the interest of justice, however this discretion should be “exercised sparingly, in those cases where there is ‘some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment…would constitute or result in injustice.” People v. Schellenhach, 67 A.D.3d 712 at 713 [2d Dept. 2009] citing CPL §21.40[1]; People v. Rahman, 302 A.D.2d 408, 409 [2003]; People v. Bebee, 175 A.D.2d 250 [1991]; People v. Scott, 284 A.D.2d 899, 900 [4th Dept 2001] and “only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations” People v. Hudson, 217 A.D,2d 402 [2d Dept,1995 [internal quotation marks and citations omitted] ; People v. Anthony C., 269 A.D.2d 402 [2d Dept 2000]; People v. Crespo, 244 A.D.2d 563 [2d Dept 1997]; People v. Bolton, 224 A.D.2d 436 [2d Dept 1996]. The defendant has failed to offer any facts or arguments relevant to the facts laid out in the statue. Turning then to the final branch of the defendant’s motion which sought to sever the counts, same is denied. The defendant argued that the CPCS7 charge was improperly joined to the other charges and that the charge occurred in a different location. Accordingly, the charges cannot be of the same criminal transaction. Offenses are joinable where they are (1) based on the same criminal transaction, or (2) are of such a nature that proof of one transaction would be material and admissible as evidence in chief upon a trial of the second, or (3) the offenses are defined by the same or similar statutory provisions. CPL §200.20 [2] [a-c]. The CPCS7 charge is properly joinable as the proof of that charge is material and admissible with respect to providing the other counts in the accusatory. There are allegations that the defendant and his wife had an argument regarding his alleged sale of narcotics from their home. The defendant’s wife then left and stayed with her sister, the complaining witness. The People posit that when his wife and her sister appeared to retrieve her belongings, the defendant was aggressive and agitated and his antagonism toward his wife was the basis for his motive to menace and assault the complaining witness. The People argued further that the defendant was using drugs at the time and that this is relevant to his state of mind when he allegedly menaced and assaulted the complaining witness herein. In addition, the police stopped the defendant and placed him under arrest following the alleged menacing of and assault of the complaining witness inside 93 Van Cortland Park Avenue Yonkers. Courts have ruled that where the circumstances of the discovery of a drug are relevant and admissible to a chronologically earlier crime, the possession charge and the earlier crime are properly joined. See, People v. Johnson, 64 A.D.2d 140, 142 [3d Dept. 1973] aff’d, 48 N.Y.2d 925 [1979]. Further, where the commission of a crime is relevant to the motive of another crime, courts have also found the charges properly joined. See, People v. Crutchfiled, 134 A.D.2d 508, 509 [2d Dept., 1987]. Joinder is favored “because it expedites the judicial process, reduces court congestion and avoids the necessity of recalling witnesses.” People v. Dean, 1 A.D. 3d 446, 448 [2d Dept. 2003]. The defendant has failed to show good cause why the severance would be in the interest of justice. As such, to the extent that the defendant requested that the CPCS7 count be severed under CPL §200.20[3], this is denied as it is not applicable when charges are joined under the provision relating to evidence that is proof of one charge as relevant and admissible to prove another. The foregoing constitutes the Decision and Order of this Court. Dated and Entered: March 24, 2022
