Misdemeanor dismissed over speedy trial issue

A Criminal Court judge in Queens has dismissed misdemeanor charges against a woman because the prosecution was not ready for trial within the required time period.

According to the decision by Judge Wanda Licitra, the prosecutor was not ready for trial for 84 days after the defendant was arraigned, and then filed a statement of readiness.

The defendant’s attorney filed a motion to dismiss the case on the grounds that the statement of readiness was inadequate.

The defense claimed the prosecution’s information did not establish ‘physical injury,’ which is a necessary element of the top charge, third-degree assault.

The defense also claimed the information contained “duplicitous counts,” according to the decision.

The defense also noted that the prosecution failed to meet the court’s deadlines in filing their response to the motion.

The prosecution claimed the information sufficiently alleged physical injury because it alleges “a laceration and bleeding” and “substantial pain.”

The defendant was charged with misdemeanors, which carries a potential sentence of up to 364 days in jail. The prosecution had 90 days to be ready for trial.

The time is counted between the filing of the first accusatory instrument and the prosecution’s declaration of readiness, taking into account excludable time under the statute.

The prosecution started the case on June 14 and filed the statement of readiness on Sept. 6, which was 84 days.

“The defense argues that the People’s statement of readiness was invalid because the People failed to first file a facially sufficient information. If the People do not first file a facially sufficient information, then their statement of readiness is illusory,” Licitra wrote.

Harris’ attorney identified two issues that she claimed invalidate the prosecution’s statement of readiness.

She claimed the third-degree assault count is insufficient because it fails to establish physical injury.

Physical injury is a necessary element of third-degree assault, and the penal law defines “physical injury” as “impairment of physical condition or substantial pain,” according to the decision.

The information’s mere invocation of the term “substantial pain” is not itself sufficient.

“The information alleges that the defendant “put her hand around (the victim’s) neck, applied pressure, and dug her nails into his neck causing him to have trouble breathing as well as a laceration and bleeding to his neck, and substantial pain,” according to the decision.

Licitra ruled that the information was sufficient to establish third-degree assault.

“It provides a subjective level of pain … and it also provides allegations that would objectively corroborate that level of pain,” Licitra wrote.

The defense also argued that the information is facially insufficient because it contains duplicitous counts.

Licitra wrote that she rejected both defense’s arguments and ruled that the information was facially sufficient.

But Licitra ordered the prosecutor to respond to the defense’s motion by Nov. 28. They did not meet that deadline and did not ask for an extension.

The prosecution did not actually respond to the motion until Jan. 10.

“Therefore, the amount of time between those two dates — 43 days — is an unreasonable delay that is ‘actually attributable’ to the People,” Licitra wrote.

“In total, 127 days of delay are attributable to the People. That exceeds the People’s allotment of 90 days. Therefore, the motion must be granted. The case is dismissed,” Licitra wrote.

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