The defendant man charged with Criminal Possession of a Controlled Substance in the Seventh Degree, Criminally Using Drug Paraphernalia in the Second Degree and Unlawful Possession of Marijuana moves to dismiss the accusatory instrument on speedy trial grounds alleging that the complainants failed to announce their readiness for trial within the applicable ninety day statutory period mandated by Criminal Procedure Law (CPL). The complainants concede, in their Affirmation in Opposition, that their announcement of readiness for trial was not made until the ninety-first day after the filing of the accusatory instrument. They assert, nonetheless, that their announcement of readiness was timely for reasons, namely that the defendant’s pre-conversion oral request for a copy of the search warrant underlying the defendant’s arrest, is an excludable pre-trial delay as provided in CPL even if the Court would disallow the request for a copy of the search warrant as an excludable pre-trial delay, as the day on which the complainants would have been required to announce their readiness for trial fell on a Sunday, the General Construction Law permits a timely announcement of readiness on the following business day (in the instant case, the ninety-first day which fell on a Monday).
The Court disagrees with both of the complainants’ contentions and, for the reasons that follow, grants the defendant’s motion to dismiss the accusatory instrument on speedy trial grounds. Robbery was not an issue.
The instant motion arises from the following facts and procedural history. The defendant was arrested on the aforementioned charges. The misdemeanor complaint, in relevant part, reads that the deponent entered the premises pursuant to a search warrant issued and observed the defendant standing in a bedroom with a quantity of crack/cocaine possession and a quantity of marijuana on top of a dresser in open view.
The defendant was arraigned on the aforementioned complaint and the case was adjourned. Although a lab report was filed attesting that the substances found were in fact cocaine and marijuana, the complainants admitted in open court that they did not yet have a corroborating affidavit from the Officer (the informant/arresting officer). At the same calendar call, the defense counsel orally requested a copy of both the search warrant and the affidavit in support thereof. The case was adjourned with the Court having instructed the complainants to produce both the corroborating affidavit and a copy of the search warrant and affidavit in support thereof on that date. In the interim, the Court had ordered the complainants to make certain redactions in both the search warrant and supporting affidavit. The complainants stated that they were still waiting for the corroborating affidavit from the arresting officer. Additionally, they informed the Court that they had a copy of the search warrant with them but had not yet made the ordered redactions. The Court then adjourned the case until February 10, 1997. On February 10, 1997 the complainants again did not produce either a corroborating affidavit from the arresting officer or a redacted copy of the search warrant and supporting affidavit. They then requested a two week adjournment until February 24, 1997. On February 11, 1997 they served and filed both a corroborating affidavit from the arresting officer and a statement of readiness for trial. On February 20, 1977, the defendant filed the instant motion to dismiss. At the next court date, February 24, 1977, the complainants announced their readiness for trial on the record in open court. Both parties have stipulated that the complainants’ statement of readiness for trial was made on February 11, 1997, the date on which it was filed with the Clerk of the Court and served upon the defense counsel, and that this was done ninety-one days after the filing of the accusatory instrument.
The Court addresses the complainants’ contention that the defendant’s request for copies of the search warrant and the affidavit in support thereof amounts to an excludable delay for speedy trial purposes. CPL sets forth that the following periods must be excluded in computing the time within which the complainants must be ready for trial:
A reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: proceedings for the determination of competency and the period during which defendant is incompetent to stand trial, demand to produce; request for a bill of particulars, pre-trials motions; appeals; trial of other charges; and the period during which such matters are under consideration by the court.
The question presented by the instant motion is whether a defense request for a copy of a search warrant falls within the parameters of this statute.
A bill of particulars is a written statement by the prosecutor specifying items of factual information which are not contained in the misdemeanor complaint or information. A request for a bill of particulars is a written request served by the defendant upon the complainants, without leave of the court, requesting a bill of particulars. In the instant case, the defense counsel’s request for a copy of the search warrant cannot be deemed tantamount to a request for a bill of particulars because the defense counsel’s request was oral; and a copy of a search warrant is not an item of factual information but rather a tangible document. Moreover, the defense counsel’s request cannot be deemed a demand to produce. A demand for a bill of particulars may be made upon a misdemeanor complaint, whereas a demand for discovery (or demand to produce) may only be made upon an accusatory instrument that is in non-hearsay form. Since the misdemeanor complaint in the instant case had not been converted to information at the time of the defendant’s oral request for a copy of the search warrant, the request could not be deemed a demand to produce. Moreover a demand to produce must be in writing.
Lastly, it must be considered whether an oral request for a copy of the search warrant and affidavit in support thereof qualifies as a pre-trial motion. The Court thinks not. A request for a copy of a search warrant and the affidavit in support thereof, whether redacted or un-redacted is typically a prelude to a possible motion to controvert a search. A defense counsel reviews these documents, usually in reacted form, to determine whether the warrant was issued on probable cause. While the motion to controvert a search warrant itself would qualify as an excludable pre-trial delay, the mere request for a copy of the search warrant and affidavit in support thereof does not. Moreover, the defendant’s request for copies of these documents in no way impeded the complainants’ ability to file a corroborating affidavit from the arresting officer thereby converting the complaint to information. The complainants are charged with pre-conversion delays, unless consented to or requested by the defendant. Accordingly, the Court finds that the complainants are chargeable with the entire period from the filing of the accusatory instrument until the filing of the statement of readiness for a period of ninety-one days.
CPL mandates that the complainants be ready for trial within ninety days of the commencement of a criminal action wherein a defendant has been charged with a misdemeanor punishable by more than ninety days in jail. The second issue presented by this motion is whether the complainants may permissibly announce or file a statement of readiness for trial on the ninety-first day when the ninetieth day falls on a weekend. In the instant case, the ninetieth day fell on a Sunday, and the complainants served and filed a statement of readiness, the following day, a Monday. The complainants rely upon the General Construction Law as the basis of their authority to do so. Specifically, their argument is predicated upon their interpretation of General Construction Law which reads that when any period of time, computed from a certain day, within which or after which an act is authorized or required to be done ends on a Saturday, Sunday or Public holiday, such may be done the next succeeding business day.
The complainants argue that their interpretation of the General Construction Law sanctioning an announcement of readiness on the ninety-first day in the circumstances of the instant case is supported by case law.
The General Construction Law sets forth certain rules for the construction, interpretation and operation of statutes in general, and specifies the meaning and scope of certain terminology. The act provides that it is applicable to every statute unless its general object, or the context of the language construed, or other provisions of the law, indicate that a different meaning or application was intended from that required to be given by the General Construction Law.
In interpreting a statute, the intent of the legislature is the controlling or most important factor the intent of the legislature is to be sought and ascertained from the language used in the act and where statutory language is clear and unambiguous, the court must give effect to the plain meaning of the words.
In drafting the time limits set forth in CPL, the Legislature specified the time periods in terms of days for violation and misdemeanor criminal offenses but in terms of months for felony criminal offenses.
The Courts have utilized the principles of legislative intent and the plain meaning of words in resolving issues involving the calculation of time periods in their interpretation of statutory language in non-speedy trial matters as well. These principles can be extrapolated from case law involving interpretation of days and time contained in other criminal statutes. CPL provides that a defendant in custody against whom a misdemeanor complaint is pending must have the complaint converted into an information within five days or be released on his own recognizance, not including Sunday.
Uniformly, analysis of the case law supports the premise that the General Construction Law should only be applied when a statute fails to set forth clear guidelines, is silent on a particular facet, or is ambiguous in its wording. In the case of CPL which explicitly mandates a ninety-day period, and makes no mention of exemptions of weekends or holidays, invocation of the General Construction Law contradicts the legislative intent. Furthermore, General Construction Law states that the General Construction Law should not be construed to amend, repeal or otherwise affect any provision of the penal law, civil practice law and rules or the criminal procedure law unless expressly stated. To permit a statement of readiness for trial to be made or filed on the ninety-first day, when the ninetieth day falls on a weekend, would be tantamount to an amendment of CPL.
The Court notes parenthetically that unlike the customarily closed and shuttered Supreme and Civil Courts of our city, there are many functions that are performed in a variety of criminal cases on weekend days and nights in the various Criminal Courts of this city wherein there may be found representatives of the District Attorney’s office, the Legal Aid Society and the Clerks of the Court. On weekends defendants are arraigned, pleas are taken, bail is set, bail source hearings are conducted, sureties are examined, warrants are vacated, sentences are executed, preliminary hearings are held, and prosecutors announce the results of grand jury action for the purposes of CPL. The Criminal Court is clearly in session unlike a Civil or Supreme Court.
In conclusion, the defendant’s oral request for a copy of the underlying search warrant and supporting affidavit does not fall within the ambit of any of the excludable pre-trial delays delineated in CPL. Furthermore, statutes should be strictly construed, and invoking to the General Obligation Law for purposes of statutory interpretation is contrary to the legislative intent, in instances such as CPL, which explicitly mandates a ninety-day statutory period. Accordingly, the defendant’s motion to dismiss the accusatory instrument pursuant to CPL is granted.
Even law offenders should be treated fairly and each arrest must be done accordingly. If you were a victim of an unlawful arrest due to a drug related case, consult a Kings County Criminal Attorney or a Kings County Drug Crime Lawyer from Stephen Bilkis and Associates. You can also approach a Kings County Drug Possession Attorney to help you explore your legal options.