In the Criminal Court of the City of New York, which handles misdemeanor cases, the average length of time from arraignment until trial is some 380 days.1 Court congestion and increasing caseloads are factors in prolonging the duration of the pretrial period. In addition, for a conscientious lawyer, trial preparation is a slow and arduous process.

But not, apparently, for many New York City misdemeanor prosecutors. Uniquely among lawyers of all specialties and jurisdictions, they declare themselves to be “ready for trial” at the first appearance, the arraignment.2 How do they become such virtuosos? A personal injury lawyer would never claim to be “ready for trial” the day after the automobile accident in question.

The assistant district attorney who declares readiness at arraignment of a misdemeanor is not ready for trial and has no intention of participating in an imminent trial. A trial never takes place so early in the case, as the prosecutor knows.

No one practicing criminal law need guess why the anomalous “ready for trial” claim is made at arraignment. It is another example, if not the reductio ad absurdum, of the implausible “ready” assertions made by prosecutors to stop the speedy trial clock.

Last year we brought to the bar’s attention a different type of “ready for trial” abuse, the “off-calendar” statement of readiness. Prosecutors would regularly declare “ready” when no one else was in court, thus stopping the clock, a few days after having avoided a trial by being “not ready” when the other parties were there (NYLJ, March 25, 2009).

Yet declaring ready at arraignment is the most damaging example of this abusive practice. It does not just stop the clock. It disables the clock.

New York’s speedy trial law is keyed, not to the occurrence of the trial, but to the prosecutor’s announcement of readiness, which, for misdemeanors, must be no later than 90 days from arraignment. By stating “ready for trial” at the first appearance, the prosecutor keeps the clock from starting.

The “ready” at arraignment pretense can force an accused to spend extra months in jail in the pretrial period. New York’s law provides that someone held in jail on a misdemeanor charge has a right to release (while the charge is still pending) after 30 days of detention “if the people are not ready for trial.”3 Declaring “ready” at arraignment effectively nullifies this right to release. The defendant experiences real-time incarceration of 30, 60, or 90 days, or more, but the “speedy” trial clock does not move. Although most accused misdemeanants remain at liberty before trial, at any given time there are a few hundred of them, all presumed innocent but too poor to afford bail, stuck in Rikers Island for months awaiting trial.4

The declarations of “ready” at the commencement also prolong the life of thousands of cases because of the special rules that have evolved for calculating “post-readiness” delay.5 Assistant district attorneys in some counties often announce “not ready” at subsequent court appearances, and request a new trial date, say seven or 14 days away. They know, of course, that no court date will be available so near in the future, and that the case is likely to be adjourned for two or three months. But only the seven or 14 days requested will be counted, not the months of delay actually caused. The typical “post-readiness” period is thus artificially prolonged by frequent adjournments for which the prosecutors are “charged” minimal time, but for which the other participants in the criminal process pay a high price in frustration and wasted time.6

As with the proliferation of “off-calendar” statements of readiness,the practice of declaring instant readiness at the outset of a misdemeanor case assumes a legal cover borrowed from the felony context. There is a line of Court of Appeals decisions that has accepted a pre-arraignment declaration of “ready” a few days before the end of the 180-day speedy trial period for felonies, if the defendant can still be arraigned on the indictment and a trial (theoretically) be held.7

It is one thing to employ this abstract concept of readiness nearly six months into the life of a felony, which would otherwise be dismissed. It is incongruous to invoke it on the first day of a misdemeanor case. The arrest has occurred in the last 24 hours, the prosecutor has only just picked up the file, the defendant is still dazed from spending a night trying to sleep on a bench in a holding cell, and defense counsel is hurriedly trying to obtain basic facts from the client to make a pitch for affordable bail or release.

Asserting “ready for trial” at arraignment contravenes the entire pretrial structure of the Criminal Procedure Law. The detailed provisions governing discovery, pre-trial motions and hearings lay out the path of a case as intended by the Legislature. The speedy trial section contains exceptions that protect the prosecution from being charged for delays it did not cause.8 It is inconceivable that the Legislature intended to enable the prosecutor to subvert the attainment of fair and timely adjudication simply by mouthing the words “ready for trial” on day one.

Unfortunately, some abusive speedy trial practices have proven to be extremely difficult to address in the normal appellate process. The issue may be reviewed only if a defendant has been convicted after a trial. Aside from the increasing rarity of a trial, the injustice suffered by the accused person jailed for months pretrial becomes a moot issue that is not correctable by an eventual acquittal or an appeal from a conviction.

It is worth noting that the practice is not universal in the city. There is a high road and a low road on this issue. For responsible individual prosecutors, who often invoke their higher calling not merely to obtain convictions but to do justice, the choice should be clear.

Thomas M. O’Brien is an attorney with the special litigation unit of the Criminal Defense Practice of The Legal Aid Society.

Endnotes:

1. 2008 Annual Report of the Criminal Court of the City of New York, p.60

2. For example, on a recent day in the arraignment parts in one borough, Legal Aid personnel recorded that assistant district attorneys declared that they were “ready for trial” on 28 misdemeanor cases. This number reflects almost all cases in which complaints were “converted” to “informations” by sworn statements. “Conversion” of a complaint, however, is merely a paper prerequisite for a trial. It is a far cry from actual readiness, as courts have noted. See, e.g., People v. Khachiyan, 194 Misc.2d 161, 164 n.2 (Crim. Ct. Kings Co. 2002) (decrying prosecutors’ “confusion of readiness with conversion”).

3. CPL §30.30(2)(b)

4. New York City Criminal Justice Agency, “Pretrial Detention and Case Outcomes, Part 1: Nonfelony Cases, p.15 (2007)

5. For a typical example, see People v. Farrell, 21 Misc.3d 579 (Crim. Ct. Bronx Co. 2008). “Ready” at arraignment was followed by “not ready” numerous times thereafter. After 15 months, only 29 speedy trial days had accrued.

6. See, e.g., People v. Walker, 21 Misc.3d 789 (Crim. Ct. Kings Co. 2008) (after 14 months and seven adjournments for DA non-readiness, only 79 days accrued).

7. See People v. Goss, 83 NY2d 782 (1996).

8. CPL §30.30(4).