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NEW YORK SPEEDY TRIAL – Part 3 – What must the prosecution do to validly answer ready for trial

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).