New York Criminal Attorney Blog

Tilem & Campbell senior partner Peter H. Tilem was on Channel 2 News tonight talking about the "Bus Matron" case. The case, which had gotten media attention in the past, has been getting additional attention due to the unusual age and procedural history of the case. This misdemeanor case which is more than 5 years old has been twice dismissed by the trial Court and twice restored by the Appellate Court who reversed the dismissals.

Back in 2006 the case was dismissed after the trial Court suppressed audio tapes that were the result of what the Court considered to be illegal eavesdropping. Then in 2009 a second judge in the Criminal Court in Brooklyn dismissed the case based upon what the trial judge found to be a violation of New York's speedy trial statute.

The Endangering the Welfare of a Child case discussed in today's New York Post article, demonstrates how experienced criminal defense lawyers need to handle complex criminal cases. The case brought against a school bus matron back in 2006 alleges that the bus matron failed to step in and protect a then 8 year old autistic child that was banging his head against the school bus window and that the bus matron taunted the child. The law firm of Tilem & Campbell, representing the bus matron was able to get the case dismissed soon after the charges were filed in 2006 because the lawyers were able to show to a criminal court judge that the evidence in the case was obtained by illegal eavesdropping. The Appellate Term of the New York Supreme Court eventually overturned the criminal court judge and had the charges were reinstated.

After the case was sent back to the criminal court, Tilem & Campbell, undeterred, again began to vigorously fight the charges. This time in 2009 a new motion was made to dismiss based upon violation of the bus matron's statutory speedy trial rights. After litigation on that issue a different criminal court judge than had dismissed it the first time, dismissed the case a second time. The Kings County District Attorney's Office made a motion to reargue the dismissal in the criminal court and after that motion was denied the District Attorney filed its second appeal in the case. Last week, the Appellate Term of the Supreme Court again reversed the dismissal and reinstated the charges.

The case, now more than five years old, will continue to wind its way through the Kings County Criminal Court and no doubt additional motions will be made. The case may even be dismissed a third time. In addition, the lawyers at Tilem & Campbell are planning an appeal to New York's highest court, the New York Court of Appeals in an attempt to get dismissal reinstated by a higher court.

The case demonstrates that a good defense lawyer must be diligent, thorough and tireless in their defense of criminal cases. In order to be successful, a good criminal defense attorney must look at all of the facts, all of the legal issues and fight the case on multiple fronts. If the attorney cannot win on one issue perhaps he/she can win on another issue. It takes time to fight cases this way. In the case of this bus matron the case has gone on for over 5 years and is not over yet. Its frustrating. Senior Partner Peter Tilem was quoted in several papers today as saying that "We can't believe it." Due to the shear frustration of fighting a case for so long as it slowly winds through the criminal justice system.

Attorneys need to remember that the client's are entitled to the type of defense where every issue or defense is examined. Clients need to understand that this type of defense takes time and can be expensive.

There is no way of knowing how this case will ultimately be resolved but at the end of the day its important to feel like you fought the good fight.

As we noted in our previous blog if you are charged with any crime in New York, other than a homicide, or any penal law non-criminal offense you are entitled to a speedy trial under New York Criminal Procedure Law sec 30.30. However, the statute is really misnamed a "speedy trial" statute because it has very little to do with speedy trial but rather has everything to do with "speedy readiness." In other words NY CPL 30.30 does not require that the trial start within the specified period but only that the People (the prosecutor) announce their readiness for trial within the speedy trial period. This reality sets up a game, all too common in some counties where the People announce their readiness only when the case cannot possible go to trial and are not ready when the case is in Court and the matter is ready to be tried. See for example the "Bus Matron case" which was handled by this office and was dismissed after the Kings County District Attorney's Office attempted to play this game. To satisfy the Criminal Procedure Law the prosecutor only need state his readiness for trial. This can be done in several ways.

People’s Communication of Readiness – Open Court Statement or Statement of Readiness in Writing:

For the People to be “ready” for trial in accordance with CPL 30.30, there “must be a communication of readiness" by the prosecutor which is made on the record in the trial Court. People v. Kendzia, 64 N.Y.2d 331, 337 (1985).

The People can accomplish this by “either a statement of readiness by the prosecutor in open court" which needs to be transcribed by a Court stenographer, or recorded by electronic means by the clerk or a "written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk" which is placed in the Court files. Id.

The People must strictly comply with the procedures outlined above or a case can be dismissed. For example, a written notice of readiness must indicate present readiness. A written statement that the People are ready for trial “subject to the court setting a date certain for trial in order to notify our witnesses” did not indicate a present readiness. People v. Fields, 214 A.D.2d 332 (1st Dept. 1995).

A statement that expresses a mere expectation to be ready is insufficient. People v Kendzia, 64 NY2d 331, 338 (1985)(the People’s statement, in a May 6th letter, that they would be ready for trial on May 26th was found insufficient because it merely expressed an expectation of readiness).

“The statute contemplates an announcement of present readiness, not a prediction or expectation of future readiness.” People v Scott, 2010 NY Slip Op 51689U, 29 Misc. 3d 1204A (N.Y. City Crim. Ct. 2010).

The statement must be made by the prosecutor not someone on behalf of the prosecutor. In People v Jacobs, 28 Misc. 3d 499, 905 N.Y.S.2d 468 (N.Y. Dist. Ct. 2010) the First District Court of Nassau County rejected the People’s argument that an affirmative representation by the judge of the People’s readiness in open court satisfied the People’s obligation to declare their readiness for trial.

Faxed Statement of Readiness Sufficient: Where People don’t announce readiness in court, facsimile transmission of the People's written notice of readiness satisfies the requirement that a written notice of readiness be sent by the prosecutor to defense counsel after filing of the same with the court.

A statement of readiness served on defendant’s prior attorney instead of current attorney is ineffective. People v. Williams, 21 Misc. 3d 1118A (N.Y. City Crim. Ct. 2008)(People conceded adjournment charged to them because they mailed statement of readiness to wrong attorney).

As you can see, the issues surrounding speedy trial dismissals in New York are complicated. Anyone who believes that they or a loved one have been denied a speedy trial should contact a criminal defense attorney familiar with New York speedy trial Law.

We have been writing about the importance of New York's Speedy Trial statute to experienced criminal defense lawyers and how we have had serious cases dismissed based upon the denial of a speedy trial. In our previous blog, we discussed the fact that New York's Speedy Trial statute is not in fact a speedy trial statute but rather a speedy readiness statute that is satisfied once the prosecution announces their readiness for trial and that fact that this reality sets up a game where prosecutors announce readiness only when they do not expect the case to go to trial and then mysteriously are not ready when the case can go to trial. But, what must a prosecutor do to validly announce his readiness for trial? For example, do the witnesses need to be waiting in the Courthouse?

Actual readiness for trial does not require the prosecution to physically produce their witnesses each and every time they assert trial readiness, because “[a]side from its impracticality, such a requirement would be unduly burdensome and vexing to witnesses.” People v Robinson, 171 A.D.2d 475 (1st Dept. 1991).

Therefore, “[t]he People are not required to contact their witnesses on each and every adjourned date and neither statute nor case law requires that the People have the ability to produce their witnesses instantaneously in order for a statement of readiness to be valid.” People v. Dushain, 247 A.D.2d 234, 236 (1st Dept. 1998)(internal citations omitted) see also People v. Camillo, 279 A.D.2d 326 (1st Dept. 2001)(The People are not required to contact their witnesses on every adjourned date nor do they have to be able to produce their witnesses instantaneously in order for a statement of readiness to be valid).

Once a prosecutor has made a good faith declaration of actual, present readiness, he or she is not required to “affirmatively prove that he [or she] is in fact ready for trial when he [or she] makes that announcement…the court is entitled to rely on the representations of a prosecutor.” People v Caussade, 162 A.D.2d 4 (2nd Dept. 1990). Indeed, the Court of Appeals has held that “the representations of a prosecutor, as an officer of the court, ought generally to suffice to determine threshold issue[s].” People v Poole, 48 N.Y.2d 144, 149 (1979)

However, the prosecution’s inability to produce the complainant in spite of their assertion of readiness requires dismissal on speedy trial grounds. People v Cole, 73 NY2d 957, 958 (1989). In other words, the mere declaration of readiness is no longer sufficient when its time to actually produce the complainant.

Illusory Statement of Readiness Ineffective

While the representations of a prosecutor, as an officer of the court, generally suffice to determine threshold issues, an illusory statement of readiness by the People, without the ability to produce their complaining witness, is nevertheless insufficient to stop the running of time for CPL 30.30 purposes. The test is whether the People are able to present their case and do so immediately. The statement must be made in good faith and reflect an actual, present state of readiness. People v. Robinson, 171 A.D.2d 475 (1st Dept. 1991).

“The mere announcement of readiness for trial by a prosecutor does not satisfy the People’s statutory obligation because the People must be able to substantiate that they are in fact ready to proceed.” People v. Hargro, 144 A.D.2d 971 (4th Dept. 1988).

As summarized in our recently posted New York Speedy Trial web page, the New York Criminal Procedure Law contains a statutory speedy trial requirement which is separate and apart from the constitutional right to a speedy trial and which is a very valuable tool in the arsenals of experienced criminal defense lawyers in New York. In this and upcoming blogs we will highlight some of the more important aspects of New York speedy trial.

Firstly, the statutory periods vary depending on the seriousness of the offense. That is to say that the time from the commencement of the action until the time that the people must be ready for trial or face dismissal of the action varies depending on the seriousness of the offense. They are as follows:

Felony; Six months from commencement less excludable periods. [CPL 30.30(1)(a)]

Misdemeanor – When Facing More Than Three Months; Ninety days from commencement less excludable periods. [CPL 30.30(1)(b)]

Misdemeanor – When Facing Not More Than Three Months; Sixty days from commencement less excludable periods. [CPL 30.30(1)(c)].

Violation; Thirty days from commencement less excludable periods. [CPL 30.30(1)(c)].

It should be noted that although the speedy trial period is 5 years for felonies regardless of the class of felony, the above speedy trial readiness periods do not apply where the defendant is charged with a homicide case, such as: Criminally Negligent Homicide [PL 125.10]; Manslaughter in the Second Degree [PL 125.15]; Manslaughter in the First Degree [PL 125.20]; Murder in the Second Degree [PL 125.25]; Aggravated Murder [PL 125.26]; and Murder in the First Degree [PL 125.27].

While the People do not have to be ready within the time period set forth in CPL 30.30(1) when the defendant is charged with the aforementioned homicide offenses, defendant is nevertheless still constitutionally guaranteed a speedy trial. See CPL 30.20.

A constitutional speedy trial claim involves a sensitive weighing of a variety of factors, including: “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay.” People v Taranovich, 37 N.Y.2d 442, 445). No one of these elements or partial combination thereof is determinative, as all having applicability must be considered carefully. Id at 445.

There is no set or rigid period of delay which automatically triggers a constitutional speedy trial violation. Instead each case is determined on its own facts and consideration of the “threefold purpose of the speedy trial guarantee -- protection against prolonged imprisonment, relief from anxiety and public suspicion attendant upon an untried accusation and prevention of loss of the means to prove innocence it being recognized that the greater the delay the more probable it is that the accused will be harmed thereby.” People v. Imbesi, 38 N.Y.2d 629, 631-632 (1976)(internal citations and quotations omitted).

These are just a few of the areas that should be considered with regard to speedy trial issues in New York. They are complex and should be discussed with an attorney experienced in New York speedy trial issues and the speedy trial motions that should be made in some criminal cases. If you or a loved one has questions about speedy trial or thinks that they are being denied a speedy trial, you should contact Tilem & Campbell to discuss your rights.