Originally, defendant was charged by complaint dated 4 November 2006 with assault in the third degree in accordance with Penal Law § 120.00 , a class A misdemeanor; menacing in the third degree in accordance with Penal Law § 120.15, a class B misdemeanor; criminal mischief in the fourth degree in accordance with Penal Law § 145.00 , a class A misdemeanor; resisting arrest under Penal Law § 205.30, a class A misdemeanor; unlawful possession of marijuana under Penal Law § 221.05, a violation; and harassment in the second degree under Penal Law § 240.26 , a violation.
It was alleged in the complaint that the defendant punched the complaining witness several times and damaged the complaining witness’ car and cell phone. The complaint further alleges that the defendant resisted arrest by going limp and kicking at the arresting officer, and that the defendant had a quantity of the drug marijuana in his pocket.
The People concede that speedy trial time has elapsed as to the counts of assault in the third degree, harassment in the second degree and menacing in the third degree. The defendant argues that the People cannot be ready to proceed to trial on only part of a complaint. The issue in this case is whether the People can be ready for trial on some of the counts in a complaint, but not on others, under the method generally referred to as partial conversion.
CPL 30.30 (1) (b) provides that the People must be ready for trial within 90 days from the commencement of the action where a defendant is charged with one or more offenses, at least one of which is a drug misdemeanor punishable by a sentence of imprisonment of more than three months, and none of which are felonies.
In People v Stiles, it was held that CPL 30.30 speedy trial time is counted from the day after the case is commenced, not the day after arraignment. This case was commenced with the filing of the accusatory instrument on 4 November 2006, and speedy trial time is therefore counted beginning on 5 November 2006.
On 16 November 2006, the People served and filed a statement of readiness, along with the a supporting affidavit from the complaining witness alleging damage to his car and cell phone, but not supporting the charges of assault, menacing, or harassment and an affidavit from Police Officer supporting the counts of unlawful possession of marijuana and resisting arrest. Assuming partial readiness, the People were then ready as to the counts of criminal mischief in the fourth degree in accordance with Penal Law § 145.00 and resisting arrest under Penal Law § 205.30. Speedy trial time was tolled as to those counts, so that the People are chargeable for 11 days as to the converted counts under Penal Law §§ 145.00, 205.30.
On 13 December 2006, the day of the next adjournment, the People served and filed a lab report and were deemed ready as to the count of unlawful possession of marijuana under Penal Law § 221.05. As to this count, still assuming partial conversion, the People are chargeable with 38 days.
The People, on 15 February 2007, conceded that defendant’s speedy trial time had elapsed as to the remaining unconverted counts, and defendant made this motion pursuant to CPL 30.30. The time elapsed between the date when defense counsel filed and served the instant motion and the date the motion was decided is excluded.
If this court accepts the People’s partial readiness, the People are chargeable with 38 days at most, not counting the counts the People concede have lapsed. Conversely, if this court declines to accept partial conversion, the People are chargeable with the entire time between arraignment and the defendant’s motion, thus 103 days.
Defendant argues that this court should not accept partial readiness. Defendant’s counsel first cites the elements of effective readiness, arguing that readiness means more than a statement in court, and that it requires genuine readiness for trial on a valid accusatory instrument. In support of this, defendant cites People v Kendzia, People v Caussade, and People v Lomax, among others, to assert that readiness requires a fully converted and facially sufficient information. If the accusatory instrument contains hearsay allegations, the defendant argues, the People cannot state readiness, because absent either a waiver of defendant’s right to trial by information or severance of the unconverted counts, the People cannot proceed to trial.
It is the defendant’s argument that even if the People could go to trial on an instrument that was not fully converted, doing so would operate as an unofficial severing of the charges, which is not supported by law. Moreover, the defendant argues that partial readiness allows the People to announce ready before being in possession of a fully converted complaint based on the notion that they could proceed to trial on the converted counts, a notion that is undermined by the People’s practice, in this case and others, to ask for more time so they may convert all the charges.
Defendant also argues that there are alternatives to partial conversion, permitted by law, which the People could have used prior to the expiration of their speedy trial time: in this case, it’s whether dismissing the unconverted counts, severing the unconverted counts, or converting the remaining charges.
The defendant cites the cases that have declined to allow partial conversion: People v Peluso, People v Quiles and People v Davino.
Finally, the defendant argues that the cases that have allowed partial conversion both contravene the rules of statutory construction and rely on dicta from previous cases.
The People advance four arguments in favor of partial conversion. They argue first that under People v Kendzia, readiness under CPL 30.30 encompasses merely a communication of readiness and actual readiness to proceed to trial, rather than readiness on the entirety of a complaint. Second, they argue that the case law supports partial readiness. They cite People v Hussein holding that each count is evaluated separately for speedy trial time as well as People v Minor and People v Clinton, cases permitting partial readiness. Third, the People cite to two other sections of the Criminal Procedure Law that invite the court to consider each count of an accusatory instrument separately: CPL 170.30 (1) (e), which allows a court to dismiss an accusatory instrument “or any count thereof” if the defendant has been denied the right to speedy trial; and CPL 100.40, which provides guidelines for determining sufficiency of a complaint, “or a count thereof.” Finally, the People argue, as a matter of policy, that forcing the prosecution to drop expiring counts in order to preserve readiness on an otherwise sound complaint will eventually encourage the People to file multiple complaints for each criminal incident, as was noted in People v Clinton.
For the reasons below, the court is persuaded by the weight of authority, the language of the statute, and policy considerations to accept partial conversion.
The court’s analysis of the speedy trial statute begins with a discussion of the rights that section exists to protect. CPL 30.30 is not a guardian of speedy trial rights or due process rights as these are enshrined in the Federal and State Constitutions. These rights are guaranteed elsewhere. Nor is it a guarantee of the defendant’s right to be tried on facially sufficient information. This is also guaranteed elsewhere.
CPL 30.30 is merely a readiness rule serving the purpose of requiring prompt prosecutorial readiness for trial. It specifies the general time permitted to the People to prepare for trial, the maximum period of detention, and exceptions to these rules. This is why, under the statute, the People are merely required to announce readiness for trial, even if their readiness does not necessarily ensure that trial will be expeditious.
The court finds that the defendant correctly argues that readiness under CPL 30.30 requires both a statement of readiness and actual readiness to proceed to trial. Actual readiness means that there is no longer any legal impediment to proceed to trial as was held in People v England. The question, however, is whether readiness under Kendzia and its progeny means there is no impediment to trying the defendant for the criminal incident alleged, or whether it means the People are in possession of a fully converted instrument that is facially sufficient in its entirety.
The cases cited against partial conversion are People v Peluso, People v Davino and People v Quiles. The court does not agree with these citations.
The Peluso court rested its argument on three main points, that the statutory scheme of CPL 30.30 provides that all the counts of an accusatory instrument be allotted the same time for the People to be ready and should therefore not be analyzed individually, that the statute provides the People with other methods for curing a defect in a complaint—severance, dismissal or conversion—but does not provide for partial conversion and relying on People v Davino, that a court has no jurisdiction to try a partially converted complaint, so that while the People may partially convert the complaint, they can only announce ready on a fully converted instrument.
The analysis in Peluso relies on that court’s reading of the statute and on People v Davino. It does not, however, fully oppose the practice that the defendant in this case would like us to prevent.
The Davino court found this second statement of readiness ineffectual—not because their speedy trial time was never tolled, but because their adjournment with full knowledge that their complaint was defective rendered their first statement of readiness invalid. The People, in post readiness, had failed to convert or dismiss within the remainder of their CPL 30.30 time.
Finally, in People v Quiles, the People argued that although they had not filed a corroborating affidavit necessary to convert three of the five counts in the complaint, their assertion of readiness was valid as to the entirety of the instrument. As the court noted, the People did not argue that their readiness was valid only as to the converted counts. On these facts, the court dismissed the unconverted counts, citing People v Minor. The court further held, citing People v Davino, that the People’s request for an adjournment to convert those counts, and their failure to dismiss or convert them before expiration of their CPL 30.30 time, invalidated their statement of readiness for trial as to the timely converted counts.
The portion of People v Peluso that relies on Davino and Quiles to oppose partial conversion in any form is therefore unpersuasive. For the reasons stated below, the court is not convinced by the Peluso court’s reading of the statute.
The court observes that the most logical reading of CPL 30.30 and other provisions of the Criminal Procedure Law supports partial conversion. CPL 30.30 provides a time limit within which the People must be ready for trial, which does not necessarily require them to be ready on every count. CPL 170.30 (1) (e) provides that the local criminal court may dismiss an accusatory instrument or any count thereof where the defendant has been denied the right to a speedy trial. This language is also reflected in CPL 210.20. CPL 100.40 provides that an information, or any count thereof, may be dismissed for facial insufficiency. These sections, particularly CPL 170.30 (1) (e), require a count-by-count reading of a complaint, and provide for a situation where one count of a complaint could be dismissed for exceeding the speedy trial time, a situation that could only arise if the complaint was not fully converted.
Lastly, the court finds that policy reasons support partial conversion. Partial conversion, like severance and dismissal, is one instrument in the People’s procedural arsenal. The People should be free to determine which method of divesting a complaint of a count is proper in each case. Severance is available to both parties where one trial would be inappropriate. Dismissal is appropriate for a situation where evidence is not likely to be forthcoming. Similarly, partial conversion is a method for safeguarding converted counts, sometimes with the expectation that the People will be able to convert other charges in time. All of these methods, including partial conversion, are subject to limiting rules, such as CPL 30.30, which exist to prevent prejudice to the defendant.
The “all-or-nothing” approach requires courts to conduct a legal sufficiency analysis for every CPL 30.30 motion, something that is clearly not intended by the statute’s separate treatment of dismissal for speedy trial violation and dismissal for facial insufficiency.
The court, therefore, finds that legislative history and policy favor partial conversion. It holds that the converted counts in the complaint, those of criminal mischief, resisting arrest and marijuana possession, as to which the People announced ready, were not affected by the failure to convert or dismiss the other counts prior to the expiration of CPL 30.30 time.
The court grants defendant’s motion to dismiss only as to the unconverted counts of assault in the third degree based on Penal Law § 120.00 , harassment in the second degree Penal Law § 240.26 , and menacing in the third degree under Penal Law § 120.15 and denies as to the counts of criminal mischief under Penal Law § 145.00), resisting arrest under Penal Law § 205.30 and marijuana possession under Penal Law § 221.05.
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