Before the Court is an application by the Defendant, Raymond Boudreau, for an order suspending the execution of the judgment pending determination of an appeal and releasing Defendant on his own recognizance. In rendering its determination, the Court has considered the following: 1. Letter by Christopher Turk, Assistant District Attorney, dated May 22, 2024, and Decision by the Hon. John B. Collins; 2. Attorney Affirmation in Support by Jonathan Manely, Defendant Appellant; and 3. Christopher Turk’s Affirmation in Opposition, inclusive of Exhibits A through C, People’s Memorandum of Law In Opposition To Defendant’s Application For Order Suspending Execution Of Judgment and Supplemental Affirmation in Opposition. Additionally, the Court heard oral argument on May 17, 2024. The Court has reviewed and considered the Short Form Order of the Hon. John B. Collins of January 8, 2024. Beginning at page 9 Mr. Justice Collins ruled as follows: As the Court finds that this matter was not certified until December 5, 2023, the question turns to whether the People have exceeded the applicable CPL §30.30 period (see People v. Bay, supra). A motion made pursuant to CPL §210.20 (1)(g) where it is alleged that the defendant has been denied his right to speedy trial must be granted where the People are not ready for trial within six months of the commencement of a criminal action where a defendant is accused of a felony (see CPL §30.30 [1][a]). In computing the time within which the people must be ready, the following periods must be excluded: a reasonable period of delay resulting from other proceedings concerning the defendant, including pre-trial motions and the periods during which such matters are under consideration by the court; or the periods of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his counsel (CPL §§30.30 [4] [a], [b]). The People bear the burden to ensure that the record is sufficiently clear as to who is chargeable for the delay (see People v. Collins, 82 NY2d 177 [1993]). A defendant does not need to demonstrate prejudice to obtain a dismissal pursuant to 30.30, as CPL §§30.30 (5) and 245.50 (3), taken together, “plainly require that the People file a proper COC reflecting that they have complied with their disclosure obligations before they may be deemed ready for trial” (People v. Bay, supra at 19). The People commenced this action on December 1, 2022, upon the filing of the felony complaint and the issuance of the arrest warrant. As such, they had 6 months (180 days) from that date to validly state ready for trial (see CPL §30.30 [1] [a]). For the reasons set forth above, the People bear the burden to prove that any of the time between December 1, 2022, and the six months thereafter, should be excluded. The defendant states, in conclusory fashion, that every day between his arraignment and today’s date is chargeable to the People. However, this assertion ignores the statutory exclusion periods enumerated in CPL §30.30. After a careful review of all of the evidence and arguments presented, the Court finds that 133 chargeable days have accrued since this action was commenced. December 1 to December 8, 2022 The felony complaint was filed, and the arrest warrant was authorized, which commenced this criminal action (see People v. Regan, 39 NY3d 459 [2023]). 7 chargeable days. December 8 to December 19, 2022 The indictment was unsealed, and the defendant was arraigned in the superior court. The defendant requested an adjournment in order to make a bail application in front of this Court (see CPL §30.30 [4] [b]). The Court notes that the statement by defense counsel of “no waivers” when he requested this adjournment does not make this time chargeable to the People, as CPL §30.30 (4)(b) cannot be circumvented by merely stating “no waivers” (see People v. Bonilla Benitez, 2023 NY Slip Op 51393 [U] [App. Term. 9th & 10th, 2023]. 0 chargeable days. December 19, 2022 to January 5, 2023 The Court heard the defendant’s bail application, and the Legal Aid Society was ordered to determine whether the defendant would be eligible for their services. The Court finds that the defendant did not formally request or consent to this adjournment (see People v. Smith, 82 NY2d 676 [1993]). 17 chargeable days. January 5 to January 12, 2023 From the time that Ms. Fast filed her notice of appearance, until the date she requested for the next court date is not chargeable to the People as it was requested by the defendant (see CPL §30.30 [4][b]). 0 chargeable days. January 12 to February 2, 2023 Mr. Manley conceded during the hearing that this adjournment was at the request of Ms. Fast, so that she could catch up as incoming trial counsel (see CPL §30.30 [4] [b]). The Court also notes that it purposefully delayed setting a pre-trial motion schedule, which normally would have been set at this appearance, at the request of Ms. Fast. 0 chargeable days. February 2 to February 21, 2023 The defendant was ordered, through direct communication with his attorney, to appear in Court on February 2 so that this Court could apprise him of the Appellate Division’s decision, and so that he could be made aware of his new securing Order. The defendant refused the Sheriff Department’s transportation to Court, despite their efforts to produce him on February 2. As the period of delay resulting from the absence or unavailability of the defendant must be excluded, and a defendant is deemed unavailable whenever his location is known, but his presence cannot be obtained with due diligence (see CPL §30.30 [4] [c] [i]). The Court notes that the defendant was apprised on January 19, by this Court, of the consequences of any failures by him to appear in Court on a scheduled date, whether he is in custody or at liberty (see People’s Exh; 2). 0 chargeable days. February 21 to March 10, 2023 At the February 21 conference, a pre-trial motion schedule was set by the Court and agreed to by both the People and Ms. Fast. This time is not chargeable to the People as it is a period given to defense counsel to prepare pre-trial motions (see CPL §§30.30[4][a]; 255.10; People v. Williams, 229 AD2d 603 [2d Dept 1996]). 0 chargeable days. March 10 to May 25, 2023 On March 10, the defendant filed a pre-trial motion. The People responded on March 20. The Court issued its decision on this pre-trial motion on May 25. This period of time is not chargeable to the People (see CPL §30.30[4] [a]). 0 chargeable days. May 25 to July 5, 2023 On May 25, the parties appeared for a conference, and it was clear that Ms. Fast was having difficulty providing her client with discovery due to her equipment. The Court attempted to accommodate her within the court lockup, and the People offered to accommodate her in their offices by filing a writ to have the defendant produced there. The Court is not persuaded by Mr. Manley’s allegation that Ms. Fast did not request to go to the District Attorney’s office-while it may be the case that it wasn’t her idea, Ms. Fast thanked the prosecution for their accommodation on the record (see People’s Exh. 10, pg. 4, In. 14-17). However, since there is not a specific request from defense counsel or consent to this adjournment in the record, this time must be charged to the People (see People v. Smith, supra; People v. Fields, 214 AD2d 332 [1st Dept 1995]). 41 chargeable days. July 5 to July 6, 2023 On June 28, Mr. Manley informed chambers that he had been retained by defendant and that he would be making the next appearance but asked for an adjournment from July 5 to July 6. This time is not chargeable to the People as it was defendant’s request (CPL §30.30 [4] [a]). 0 chargeable days. July 6 to July 20, 2023 On July 5, chambers reached out to Mr. Manley to let him know that the Court would not be available the following day due to the need to attend a family funeral out of state. The Court offered to adjourn the matter to July 20, as Mr. Manley was already scheduled to be before this Court on a separate matter for sentencing, and the date was suggested to Mr. Manley for his convenience. The defendant argues that this time should be considered People’s time, as it was requested at the behest of the Court, not the defendant. However, “the unavailability of the court due to vacation or for its own convenience is not chargeable to the People since CPL §30.30…really addresses prosecutorial, not court, readiness” (People v. Correa, 161 AD2d. 391, 392 [1st Dept 1990], aff’d, 77 NY2d 930 [1991]). Since this adjournment was for the Court’s schedule to attend a funeral, it is not chargeable to the People. 0 chargeable days. July 20 to August 15, 2023 It is undisputed that this adjournment was at the request of the defendant, so that he could catch up with the case (see CPL §30.30 [4] [a]). 0 chargeable days. August 15 to September 5, 2023 At the August 15 conference, the defendant announced his intention to file a motion challenging count 4 in the indictment, and requesting that it be dismissed, pursuant to, inter alia, Article 210. This time is not chargeable to the People as it is a period given to defense counsel to prepare pre-trial motions (see CPL §§30.30 [4] [a]; 255.10; People v. Williams, 229 AD2d 603 [2d Dept 1996]). 0 chargeable days. September 5 to September 15, 2023 A conference was held on September 5, and Mr. Manley again indicated his intention to file a motion the following day to dismiss count 4 of the indictment (see People’s Exh. 13, pg. 2, In. 22-25, pg. 3, In. 2-5). The defendant filed his motion on September 6, the People responded on September 12, and the Court issued its decision on September 15. As this time was the period granted to the defendant to file his motion, and then the period of time that the matter was under consideration by this Court, the time is not chargeable to the People (see CPL §30.30 [4][a]). 0 chargeable days. September 15 to October 2, 2023 The Court finds that the People failed to meet their burden, and the defendant did not formally request or consent to this adjournment as neither side remained to place the adjournment on the record (see People v. Smith, 82 NY2d 676 (1993]). 17 chargeable days. October 2 to October 5, 2023 The transcript indicates that the defendant requested an adjournment of the matter to October 5 (see People’s Exh. 15, pg. 2, In. 5-6; see also CPL §30.30 [4] [a]). 0 chargeable days. October 5 to November 16, 2023 The Court finds that the People failed to meet their burden, and the defendant did not formally request or consent to this adjournment (see People v. Smith, 82 NY2d 676 [1993]; People’s Exh. 17). 32 chargeable days. November 16 to December 5, 2023 The Court finds that the People failed to meet their burden, and the defendant did not formally request or consent to this adjournment as neither side remained to place the adjournment on the record (see People v. Smith, 82 NY2d 676 [1993]). The time until December 5, when the People filed their COC, is chargeable to the People. 19 chargeable days. As the People have validly stated their readiness for trial before the expiration of the speedy trial period, the defendant’s motion to dismiss the indictment pursuant to CPL §30.30 is denied. The Court is not in receipt of proof on behalf of the Defendant suggesting an error in Mr. Justice Collins calculations. Nevertheless, this Court must determine whether or not the Defendant waived appellate rights. The Court has reviewed the plea minutes before the Hon. John B. Collins of January 18, 2024. THE COURT: There are some things, according to the law, that I must tell you, anyway, so, again, please listen carefully. A defendant ordinarily retains a separate and distinct constitutional right of appeal even after they plead guilty. In this case, however, as a condition of the plea agreement, the People have requested that you give up that right in order to accept this plea and sentence agreement. Is that your understanding? THE DEFENDANT: It is. THE COURT: Is that what you wish to do? THE DEFENDANT: I do. (P. 10) The court then explained: THE COURT: And by waiving your right of appeal today, you don’t necessarily give up your right to take an appeal, but if you do take an appeal, you are, by this plea and waiver today, giving up your right to have the appellate court consider what I call most ordinary claims of error, which include, for example, any rulings that might have been made on the evidence, discovery, suppression of evidence, any pretrial motions your attorneys may have made on your behalf, and whether the sentence you ultimately receive is harsh or excessive and needs to be modified. Do you understand? (emphasis added) THE DEFENDANT: I do (P. 11). There is no basis for this Court to grant Defendant’s stay application, as his conviction in this case followed a knowing, voluntary, and intelligent plea, which was supported by a proper waiver of the right to appeal, which itself was supported by both proper written waiver and oral colloquy. The Court finds that on January 18, 2024, the Defendant knowingly, intelligently, and voluntarily pleaded guilty to count three of the indictment, burglary in the second degree. The Court further finds that during Defendant’s plea proceeding he waived his right to appeal his conviction on statutory speedy trial grounds, both during colloquy and by sufficient written waiver. Therefore, it is ORDERED ADJUDGED AND DECREED that the Application is DENIED. The foregoing constitutes the decision and ORDER of this Court. Dated: May 30, 2024
