John H. Wilson
John H. Wilson ()

For most practitioners of criminal law, receipt of an off-calendar statement of readiness from the People is routine. However, the question of whether or not that statement is an accurate pronouncement of the People’s status has been rarely addressed.

Now, in People v. Sibblies,1 the Court of Appeals has dishonored an off-calendar statement of readiness, leading to the dismissal of a misdemeanor information.

Each of the concurring opinions in Sibblies provides a different method by which the People’s off-calendar statement of readiness can be measured and weighed. However, neither provides a solution to the underlying problem: the “illusory” assertion of readiness, made when the People are not actually ready for trial.

Two Concurrences

The facts in Sibblies were not in dispute. Marsha Sibblies was initially arrested for felony assault on a police officer after a traffic stop, after which the People reduced the charge to a misdemeanor assault on Feb. 8, 2007. “On Feb. 22, 2007, the People filed an off-calendar certificate of readiness and a supporting deposition. Eight days later, on March 2, 2007, the People requested the medical records of the officer injured in the altercation.” Then, on the next scheduled court appearance date of March 28, 2007, the People stated not ready since they are “continuing to investigate and are awaiting medical records [of the officer].”2

Chief Judge Jonathan Lippman, in one concurring opinion, held that once the People declared “not ready” in court after stating ready off calendar, the provisions of CPL Sec. 30.30(3)(b) apply, that is, the People’s “present unreadiness is due to some exceptional fact or circumstance.” The statute cites the example of “the sudden unavailability of evidence material to the People’s case.”

Following this rule, Lippman stated that the trial court “may hold a hearing on the issue [but if] the People cannot demonstrate an exceptional fact or circumstance, then the People should be considered not to have been ready when they filed the off-calendar certificate.”3

Lippman’s rationale for his holding will resonate with all practitioners of criminal law; “allowing, without scrutiny, declarations of readiness off-calendar and subsequent declarations of unreadiness at the next appearance creates the possibility that this scenario could be reenacted ad seriatim.”4

Judge Victoria Graffeo’s concurrence has the benefit of being decided on “a narrower basis” than the one proposed by Lippman. Citing to People v. Kendzia,5 Graffeo reiterated the Court of Appeals’ definition for a proper statement of readiness: first, “there must be a communication of readiness by the People which appears on the trial court’s record. This requires either a statement of readiness by the prosecutor in open court…or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record…”6

For the purpose of the concurrence in Sibblies, Graffeo concentrated on the second requirement for readiness: “the People ‘must in fact be ready to proceed at the time they declare readiness.’”7

Rather than require a hearing on whether or not there was an “exceptional fact or circumstance” to explain the People’s subsequent non-readiness, Graffeo believed that when “the prosecutor gave no explanation for the change in circumstances between the initial statement of readiness and the subsequent admission that the People were not ready to proceed without the medical records…[t]he February 22 statement of readiness therefore did not accurately reflect the People’s position.”8

In reaching this conclusion, Graffeo cited to People v. Bonilla,9 where the First Department held that the People’s statement of readiness was illusory when the People “answered ready for trial but later requested two adjournments so that they could further investigate the case.”10

Graffeo’s discussion highlights a fundamental issue for the criminal lawyer when the People announce readiness; the necessity for the People to actually be ready when they state ready for trial.

Other Cases

Often, as in Sibblies, the People make their announcement of readiness at the time they cure the hearsay from a misdemeanor complaint, usually by filing a supporting deposition with the statement of readiness.11 In many cases, relying upon People v. Kalin, the People will state ready for trial in drug possession cases, in the absence of a laboratory report.12

In Kalin, the Court of Appeals ruled that where a defendant is charged with drug possession, the factual allegations stated in a Criminal Court complaint must “provide some information as to why the officer concluded that the substance was a particular type of illegal drug.”13 Thus, a Criminal Court complaint is sufficient “so long as the factual allegations of an information give an accused notice sufficient to prepare a defense…[these allegations] should be given a fair and not overly restrictive or technical reading.”14

Kalin was meant to address the circumstances under which a Criminal Court complaint can be deemed facially sufficient, that is, whether the complaint is an information, free of hearsay, an accusatory instrument upon which the People may proceed to trial. Nothing in the language of Kalin addresses whether a sufficient complaint is equivalent to actual readiness for trial.

In other words, just because the complaint is acknowledged to be an information, this does not necessarily mean that the People are ready to proceed to trial at that same instance.

The law has been clear for quite some time: For a statement of readiness to be valid, the People must be ready to commence trial at the time the statement is made. In People v. England, the Court of Appeals enunciated the standard to be met; when the People state “ready” for trial, they must have removed all legal impediments to the commencement of their case, that is, the People have “done all that is required of them to bring the case to a point where it may be tried.”15

A statement of readiness pertains only to the People’s readiness to begin trial. It is not “a prediction or expectation of future readiness.”16 Stating ready for pretrial hearings is not a statement of readiness.17 Nor is there any such thing as “ready” for conversion.18

Constant Concern

The recent case of People v. Colon,19 which was decided by the author, illustrates the difference between an acknowledgment that an accusatory instrument is an information, and actual readiness for trial.

In Colon, the People filed a statement of readiness with a supporting deposition, thus converting the misdemeanor complaint into an information. However, the court asked the People how they could proceed to trial without a laboratory analysis. The People stated that they were ready, “pursuant to Kalin.”20

As it happened, once the laboratory report was produced, it was dated several days after the People’s statement of readiness. In that circumstance, the court held it impossible for the People to have been actually ready when they announced ready for trial.

If one of the necessary elements of the People’s case is proof that the substance recovered from this Defendant is marijuana, and that substance was not analyzed until October 7, 2013, then the Statement of Readiness filed and served on September 27, 2013 is illusory, nothing more than a prediction or expectation of future readiness.21

In each of the concurring opinions in Sibblies, the Court of Appeals has provided two different ways to view the People’s off-calendar statement of readiness. But the underlying issue discussed in Colon, that of the validity of the People’s statement of readiness, particularly in light of a subsequent statement of non-readiness, remains of constant concern to the criminal law practitioner.

Sibblies does not resolve the dilemma, and in all fairness, the issue addressed in both Sibblies and Colon must be met on a case-by-case basis. But Sibblies does shed light on the problem, and provides two systematic approaches for examining the underlying question of an illusory statement of readiness.

John H. Wilson is a judge in Bronx Criminal Court and a former prosecutor and defense attorney. He decided ‘People v. Colon,’ which is discussed in this article.

Endnotes:

1. __ NY3d __, 2014 WL 1357337 (2014).

2. 2014 WL 1357337, p 1.

3. 2014 WL 1357337, p 3. .

4. 2014 WL 1357337, p 3.

5. 64 NY2d 331, 486 NYS2d 888 (1985).

6. 64 NY2d at 337; 2014 WL 1357337, p 5. See, also, People v. Wilson, 86 NY2d 753, 754, 631 NYS2d 127 (1995); People v. Bonilla, 94 AD3d 633, 942 NYS2d 509 (1st Dept. 2012): People v. Mahmood, 13 Misc.3d 1206(A), 824 NYS2d 757 (Crim Ct, Kings Cty, 2006).

7. 2014 WL 1357337, p 5, citing People v. Chavis, 91 NY2d 500, 505, 673 NYS2d 29 (1998).

8. 2014 WL 1357337, p 5.

9. 94 AD3d 633, 942 NYS2d 509 (1st Dept, 2012).

10. 2014 WL 1357337, p 5.

11, 2014 WL 1357337, p 1.

12. People v. Kalin, 12 NY3d 225, 230, 878 NYS2d 653 (2009). For a discussion of the procedural due process considerations regarding the court’s acceptance of a statement of readiness in the absence of a laboratory report see, People v. Nunn, 24 Misc.3d 944, 882 NYS2d 887 (Crim Ct, Kings Cty, 2009).

13. 12 NY3d at 231-232. See, also, People v. Oliver, 31 Misc3d 130(A), 927 NYS2d 818 (App Term, 2d, 11th and 13th JD, 2011), lv app den, 17 NY3d 954, 936 NYS2d 80 (2011); People v. Dumas, 68 NY2d 729, 506 NYS2d 319 (1986).

14. 12 NY3d at 230, citing, People v. Konieczny, 2 NY3d 569, 575, 780 NYS2d 546 (2004), citing, People v. Casey, 95 NY2d 354, 360, 717 NYS2d 88 (2000).

15. 84 NY2d 1, 4, 613 NYS2d 854 (1994), citing People v. McKenna, 76 NY2d 59, 64-65 556 NYS2d 514 (1990). See, also, People v. Dauphin, 112 AD3d 471, 976 NYS2d 465 (1st Dept, 2013); People v. Brewer, 63 AD3d 402, 403, 880 NYS2d 56 (1st Dept, 2009); People v. Khachiyan, 194 Misc.2d 161, 163, 752 NYS2d 243 (Crim Ct, Kings Cty, 2002).

16. 64 NY2d at 337. See, also, People v. Nunez, 47 AD3d 545, 546, 851 NYS2d 128 (1st Dept, 2008) (“the record supports the motion court’s finding that the [People's] request…was merely an illusory expectation of future readiness”).

17. See, People v. Chavis, 91 NY2d 500, 505-6, 673 NYS2d 29 (1998).

18. See, People v. Khachiayan, 194 Misc2d 161, 752 NYS2d 243 (Crim Ct, Kings Cty, 2002).

19. 42 Misc.3d 1228(A), 2014 WL 715503 (Crim Ct, Bx Cty, 2014).

20. 2014 WL 715503 at 1.

21. 2014 WL 715503 at 3. See, also, Kendzia, 64 NY2d at 337. A statement of readiness is not “a prediction or expectation of future readiness.”