“Huzzah!” I cry in response to Thomas O’Brien’s “The ‘Speedy-Trial’ Statute: Disabled by Legal Fictions” (NYLJ 12/6/17). I imagine the voice of Barbara Streisand singing, “Memories … from the corners of Part A.” But I should not joke: Remember that Kalief Browder’s grotesque, pre-trial detention, based on a faulty identification from a witness in Mexico, only ended because, according to the documentary Time, the prosecutors were overheard at the last appearance whispering, “I’m not putting my career on the line.”
I got my feet wet and still splash in New York criminal law. I’ve tried only two misdemeanors recently, both involving possession of marijuana. Three years and adjournments for two bench trials, a youthful offender finding, and unconditional discharges in both cases. One day was chargeable to the prosecution, nevertheless. I’ve noticed a change over the decades in the interpretation of CPL §30.30, and believe it is a major cause of the broken criminal justice system in this state. When I defended misdemeanors on a regular basis, I knew I could usually win on 30.30—though never on felonies. In Manhattan, where I’ve done most of my cases, the office of former D.A. Robert Morgenthau would concede 30.30 time when it knew it would not prosecute. I rarely got written statements of readiness and wonder if there was an internal practice not to file them except in a real case.
My strategy, which got me no trial practice but almost all misdemeanors dismissed under 30.30, was as follows: (1) waive motions unless essential (that makes the time usually excludable attributable to the prosecution); (2) at 90 days, ask if the court will entertain a 30.30 motion on the record if there has been no statement of readiness; (3) if the answer is no, wait for one more adjournment and have it ready to serve in court; but (4) never participate in deciding on an adjournment date. (A judge might later charge the defendant with some time, especially in a post-readiness posture); (5) during post-readiness, agree to the ADA’s proposed date in which the prosecutor says she can announce readiness. Push for the case to be scheduled for that day. The “People” would rarely be ready on that day. Get to court early to avoid “court congestion.”
An upstate practitioner at the National Criminal Defense College in Georgia, which I attended in 1996, told me that 30.30 motions “only work in New York City.” Perhaps not anymore; law enforcement wants it all: Nonsense arrests, impossible bail, and the freedom from trying cases. I look from my perch in civil practice thinking, “Are you people crazy?” (This is not to say that civil practitioners are so sane.) But for a reality shock, please watch Time and see what the criminal justice system in this City has become. It’s worth a watch for the sheer pleasure of listening to the documentarian cross-examine a certain player about Kalief’s case as she struggles to answer.
Oh, and don’t get me started on summons court! Some J.H.O.’s (who double as prosecutors, collecting fines for the City), won’t even entertain 30.30 motions. Defendants told to appear at the summons part—346 Broadway—are asked to waive their right to appear before a Criminal Court judge on a petty offense; rather, they appear before a retired judge getting paid $500 a day. I advise potential clients never to waive. But, without knowledge of the difference between summons part and criminal court, most simply sign the waiver. In fact, if every summons defendant refused to waive, the criminal court would be overwhelmed, and perhaps the City would reconsider the issuance of summonses as a Fergusonesque collection device.
However, “court congestion” under CPL §30.30(b)(2) was always the problem I could never overcome. The courts have no time for trial and expect innocent people to plead and be released. These defendants are kept in jail until they give in. I remember a client, who was in on bail. Judge Mogulescu found the prosecution had one day left to prosecute the case. Notably, Morgenthau’s deputies filled the courtroom as he conducted oral argument on the motion and a marginal decision was rendered against me.
The next day, I arrived in court at 8:30 a.m. I was the first to sign in, and the clerk called my client’s case. The ADA standing in said, “the People might be ready and ask for a second call.” I objected (or perhaps went ballistic): “The People are ready or they are not ready. There is only one day left before this case is dismissed, and if the prosecution can stroll into court in an hour and announce readiness, there will be no parts available. That’s why I got here so early.” Over objection (and reluctance), the Judge marked the case for a second call.
At the second call, the prosecution announced “Ready.” But there were no parts available. To her credit, then Judge Patricia DiMango, told the ADA that what I had predicted was precisely correct. She offered to adjourn the case from day to day until I got a courtroom. I encouraged my client to take up the offer, but, sadly, he folded.
Gregory Antollino is a civil rights lawyer in New York.