13 September 2012

Being a prosecutor means (almost) never having to bring your file

People v Perkins, 2012 NY Slip Op 22254 [Kings County 2012] [available here]

At about 5am on July 26, 2010, the defendant in Perkins was arrested and charged with DWI, fleeing a police officer, reckless driving, and resisting arrest (as misdemeanors), as well has a handful of tickets for various traffic violations, including driving while under the influence of alcohol. She was arraigned the next day.

In March 2012, the judge assigned to defendant's case tossed all of the misdemeanor charges based on the prosecutor's failure to be ready for trial within "90 days of commencement of the criminal action," as required by New York's speedy trial laws. As of that time, the judge found that the total delay attributable to the prosecution was 120 days. Yet the judge refused to dismiss the traffic tickets, as well.

Why? Because of a loophole in New York's speedy trial laws. The statute gives the prosecutor a proportionally longer leash to declare readiness for trial, based on the severity of the offense. Felonies must be ready within six months, misdemeanors within ninety days, and violation-level offenses within thirty days. The statute is silent, however, as to the speedy trial time for traffic tickets. One would think that courts would require readiness within 30 days or less for speeding tickets, given that traffic tickets are even less serious than violation-level offenses, and in keeping with the obvious policy of the speedy trial statutory framework.

But, no. There is a constitutional right to a speedy trial that does not depend on the speedy trial statute, but Courts do not automatically dismiss traffic tickets where the prosecutor does not announce readiness in 30 days. The approach is strictly ad hoc, and largely in the discretion of each individual judge.

In July of this year, the defendant tried again, asking a different judge to dismiss the traffic tickets because, incredibly, the prosecution was still not ready for trial. In the almost two years since she was arrested, the defendant appeared 25 times (!!) in court, traveling from North Carolina to New York each time, and on the last ten occasions since the misdemeanors were dismissed the People "answered not ready for trial" when the case was called for trial.

The excuses offered by the People for failing to be ready for trial?

some of the time periods charged to the People are attributable to: the People not having their file in court; the Assistant District Attorney being on trial in another matter; the Assistant District Attorney being unavailable while in training; and on two occasions for reassignment of the case to a new Assistant District Attorney

(Perkins, *2.)

On top of everything, the defendant's driver's license was suspended pending prosecution for the DWAI--a period of two years and counting--even though the longest suspension she was facing after conviction would be 90 days.

The new judge, to his credit, finally had enough, and dismissed the rest of the traffic tickets on speedy trial grounds, holding:

In deciding defendant's constitutional claim, this court is aware of the need to foster both respect for, as well as public confidence in, our legal system. To do so, it is important that our courts interpret the law in a manner which is just, non-arbitrary and balanced. A prosecution in which all misdemeanor charges have been dismissed for failure to bring the case to trial in a timely manner, while less, non-criminal offenses remain pending, potentially without limitation, does not foster these important objectives.
(Id. * 3.)

The legislature could easily fix this problem by modifying CPL 30.30 to include an express time limit for declaring readiness on traffic tickets.

#1 I am, of course, positive that the judge would have granted the defense an adjournment if the attorney forgot his file, or had to be at a CLE, or simply did not show up.


  1. I once found out my ticket was tossed out because after 3 or 4 delays in court the office could remember nothing about the day in question. I found out in the newspaper and had to send the newspaper to the state DMV as the court never cleared it from my record.

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