Barry Kamins (NYLJ/Rick Kopstein)
In People v. Sibblies,1 the Court of Appeals has revisited New York’s speedy trial statute and addressed certain strategies that have come under criticism by courts and members of the defense bar. Specifically, the court addressed the common scenario where the People file an off-calendar statement of readiness and subsequently announce in court that they are not ready to proceed. Thus, it is argued, in some cases the declaration of readiness is illusory and does not accurately reflect the People’s position.
Addressing this scenario, members of the court have issued two, three-judge concurrences that found a certificate of readiness invalid based upon different rationales. This column will attempt to discuss the decision’s precedential value.
Over 40 years ago, the Legislature enacted CPL 30.30 which is titled a “speedy trial” law but, as courts later noted, does not guarantee a defendant’s right to speedy trial; that guarantee is contained in the 6th Amendment to the U.S. Constitution made applicable to the states by the 14th Amendment and in CPL 30.20.2 The Court of Appeals ultimately found CPL 30.30 to be a “purely statutory ‘readiness rule.’ It was enacted to serve the narrow purpose of ensuring prompt prosecutorial readiness for trial and its provisions must be interpreted accordingly.”3
Over the years, the statute has been criticized. Former Chief Judge Judith Kaye opined that the law was outdated, and even perhaps responsible for “thwarting the efficient disposition of an ever-increasing docket of criminal cases.”4 One jurist, reflecting the opinion of some of her colleagues, noted in an opinion that “[s]peedy trial motions have become a judge’s, if not a litigant’s, nightmare. The opaque language of CPL 30.30 resists clarification by judicial interpretation. What follows is yet another attempt to understand this misbegotten statute.”5 One commentator, in attempting to review the complexities of the statute, advised as follows: “Practitioners should make their peace with section 30.30, but not aspire to master its unfathomable nuances.”6
In several articles in the New York Law Journal, one practitioner has advocated for reform, arguing that certain actions by prosecutors have thwarted the intent of the statute and that some court decisions have “unintentionally facilitated its misapplication.”7 One of the practices Thomas O’Brien criticized is the filing of the off-calendar statement of readiness, which the People often do after an adjournment when they are not ready for trial. This filing stops the speedy trial clock for the remainder of the adjournment period which, as noted by O’Brien, might stretch for several months. On the next court appearance, if the People state that they are not ready, defense counsel frequently question the validity of the prior off-calendar statement of readiness: Was it illusory?
In Sibblies, the defendant was arrested on Nov. 27, 2006, and charged with a felony and several misdemeanors arising out of an altercation with a police officer during a traffic stop. On Feb. 8, 2007, the People moved to dismiss the only felony charge and replaced the felony complaint with a misdemeanor information. Both parties agreed that the filing of the information triggered the 90-day statutory speedy trial period during which the People were required to announce readiness for trial. The case was adjourned to March 28, 2007. On Feb. 22, 2007, the People filed an off-calendar certificate of readiness. However, eight days later, on March 2, 2007, the People requested the medical records of the officer injured during the altercation.
At the next calendar call of the case, on March 28, 2007, the People told the court that they were not ready: “The People are not ready at this time. The People are continuing to investigate and are awaiting medical records. It was a cop assault.” The People indicated that they expected to receive the records within a week, and requested a one-week adjournment. The court scheduled the case for trial on June 7, and informed the prosecutor that the ensuing time would be charged to the People until a new certificate of readiness was filed. On May 23, the People filed a second off-calendar statement of readiness. On June 7, the case was adjourned for defense counsel to file a motion to dismiss pursuant to CPL 30.30.
The motion was denied, and the case proceeded to trial, at which the People offered testimony of the police officer as well as his medical records. The defendant was convicted of several misdemeanors. The Appellate Division affirmed the conviction and rejected the defendant’s CPL 30.30 argument, holding that, when the People filed the initial certificate of readiness, they “were plainly ready to present a prima facie case”8 in the absence of the medical records. Thus, the certificate was not illusory.
In reversing, the Court of Appeals held that the certificate of readiness had, in fact, been illusory. Judge Sheila Abdus-Salaam did not participate in the decision, having been on the panel at the Appellate Division First Department that decided the case. As a result, there were two, three-judge concurring opinions reaching the same result but based upon different rationales.
In one of the opinions, Judge Victoria Graffeo, supported by Judges Susan Read and Eugene Pigott, began by stating that she “would decide this case on a narrower basis than the one proposed by Chief Judge Lippman.”9 Her opinion is limited to the facts presented in this case and, based on a factual analysis, Graffeo found the prior declaration of readiness to be illusory. Chief Judge Jonathan Lippman’s opinion, concurred in by Judges Robert Smith and Jenny Rivera, enunciated a more sweeping rule that invalidates a prior certificate of readiness when a prosecutor does not offer an exceptional fact or circumstance as the reason for not being ready on the next court appearance.
Both opinions focused on the fact that the People had filed a certificate of readiness and yet, when they appeared in court approximately one month later, stated that they were not ready for trial. Graffeo’s opinion focused on the accuracy of the prior announcement of readiness. She noted that there is a presumption that a statement of readiness is truthful and accurate and that the presumption must be rebutted before a certificate of readiness can be found illusory. At the same time, however, the prosecution must offer an explanation that satisfactorily explains the reason for the change from “ready” to “not ready.” If they fail to do so, the court can find that the prior statement of readiness did not accurately reflect the People’s position; as a result the People would be charged with the period of time between the time the certificate was filed and their statement of unreadiness at the next court appearance.
Graffeo noted that when the People filed the certificate, and said they were ready for trial, they did so despite the fact that they had not yet received the medical records of the officer, who had allegedly been assaulted. Yet, the People stated on the next court date that they were not ready because they were waiting to receive the same records. Thus, the prosecutor was required to explain the change in circumstances but failed to do so.
Graffeo relied upon a line of cases that focuses on the accuracy of the readiness declaration. Under one scenario, the People can file a certificate after making an initial strategic decision to proceed, if necessary, with a minimal prima facie case but later decide to present additional evidence to present their case. Under this set of facts, the certificate has been found valid.10 Under the second scenario,11 after filing a certificate, the People later request an adjournment, asserting a need to gather more evidence and investigate further. This assertion casts doubt on the accuracy of the prior statement of readiness. Under this latter theory, Graffeo held the certificate of readiness in Sibblies to be illusory.
In his concurring opinion, Lippman focused, instead, on post-readiness delay; having previously announced readiness, why are the People currently alleging that they cannot proceed to trial? In the past, the court has excused such delay if the People assert an exceptional fact or circumstance that makes it “impossible for the People to proceed.”12 While a number of exceptional circumstances have been judicially recognized and will excuse post-readiness delay,13 Lippman held that the excuse offered in this case—the People’s desire to strengthen their case—does not meet that standard.
Finding that the People failed to offer a sufficient reason for their failure to proceed, Lippman concluded that the prior certificate of readiness was ineffective. He reached that conclusion after examining the intent of the speedy trial statute. The purpose of the law is to expedite the defendant’s ability to seek a resolution of a case. Lippman concluded that consistent with the intent of the statute, once a prosecutor announces readiness, unless exceptional circumstances arise after that, a prosecutor’s subsequent declaration of unreadiness violates the true purpose of the law. As a result, the time between the filing of the certificate and the following appearance should be charged to the People.
Thus, the opinions differ on the nature of the explanation and the burden on the People. Graffeo’s concurrence requires the People to explain the circumstances that changed their posture from “ready” to “not ready.” Looking backwards, she then assessed the accuracy of the prior statement of readiness. Lippman’s concurrence requires the prosecutor to give a reason, i.e. an exceptional fact or circumstance, arising after their declaration of readiness, to explain why it is impossible to proceed to trial.
The two concurrences, each supported by three judges, is unusual and present lower courts, as well as prosecutors and the defense bar, with a difficult question: What precedential value does the case have? Without a majority opinion, is there a legal principle that has a binding precedential effect? In short, what did the court hold?
Based on the two three-judge concurring opinions, some may assign little or no precedential value to the decision and wait, instead, for appellate courts to interpret the decision in the future. Others may attempt to interpret the decision by analogizing it to a plurality decision from the U.S. Supreme Court. A plurality opinion occurs “when at least five Justices agree on the result in a particular case but no single rationale garners five votes.”14
Recognizing that plurality decisions give rise to great confusion, the Supreme Court adopted a test for lower courts to determine the precedential value of such decisions. In Marks v. United States,15 the court held: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds’…”16
In applying the Marks test, one commentator has opined that there are two steps to interpretation: “…either the least common denominator running throughout the multiple opinions…or where such a denominator is not readily apparent, the opinion which reaches the result on the most narrow grounds shall be regarded as precedent.”17
Applying the Marks test to Sibblies, one jurist has identified the approach taken in Graffeo’s opinion as the “narrower” ground. In People v. McLeod,18 the Criminal Court, New York County, found that Graffeo’s opinion relied upon settled principles of speedy trial law and adopted its reasoning. Specifically, the court found that Graffeo’s opinions left intact two settled principles: (1) a post-certificate assertion that the People are not ready does not, by itself, vitiate the prior certificate; and (2) an unexceptional reason for post-certificate unreadiness, unless it demonstrates that the certificate was inaccurate, does not render the certificate illusory.
Whatever the precedential value, it seems likely that greater scrutiny will be given to off-calendar declarations of readiness and subsequent declarations of unreadiness. To quote Lippman, this may result in more “readiness on the ground” rather than just “readiness in the air.”19
Barry Kamins is a Supreme Court justice, Chief of Policy and Planning for the State Courts and Administrator for the New York City Criminal Court.
1. People v. Sibblies, ___ NY3d ___, 2014 NY Slip Op 02377 (2014).
2. Barker v Wingo, ___ NY3d ___, 407 US 514 (1972).
3. People v. Sinistraj, 67 NY2d 236, 239 (1986).
4. Special Report: The State of the Judiciary, Kaye, 70 NY State Bar Journal 50.
5. People v. Neal, 160 Misc2d 173 (Sup Ct, N.Y. Co. 1994) (Uviller). See also People v. Khachiyan, 194 Misc2d 161 (2002).
6. Dean, New York Pretrial Criminal Procedure, §9.1, Marks at 662 (West, 2007).
7. O’Brien, “The Undoing of Speedy Trial in New York: the ‘Ready Rule’” (NYLJ, Jan. 14, 2014); “ DA Announces ‘Ready for Trial’ at Arraignment” (NYLJ Aug. 16, 2010); “ The DA: Not Ready When You Are” (NYLJ March 25, 2009).
8. 98 AD3d 458, 460 (1st Dept. 2012).
9. People v. Sibblies, 2014 NY Slip Op (2014) at p. 6.
10. People v. Wright, 50 AD3d 429 (1st Dept. 2008).
11. People v. Bonilla, 94 AD3d 633 (1st Dept. 2012).
12. People v. Anderson, 66 NY2d 529, 534 (1985).
13. See e.g., People v. Thomas, 210 AD2d 736 (3d Dept. 1994) (disappearance of a witness); People v. Goodman, 41 NY2d 888 (1977) (unavailability of complainant for medical reasons).
14. “Explaining Plurality Decisions”, Spriggs and Stras, 99 Georgetown Law Journal 515 (2011).
15. 430 US 188 (1977).
16. Id at 193, quoting Gregg v. Georgia, 428 US 153, 169 n.15 (1976).
17. “I Concur! Do I Matter?: Developing a Framework for Determining the Precedential Influence of Concurring Opinions,” Moore, 84 Temple L. Rev. 743, 764 (2012).
18. People v. McLeod, ___ Misc3d ___, 2014 NY Slip Op 24115 (NY County Crim Court, 2014).
19. People v Sibblies, at 4.