NY appeals court reserves decision on speedy trial issue

A state appeals court has sent a sex abuse case back to the lower court to rule on a speedy trial question.

Defendant Thomas P. Mitchell was convicted of second-degree unlawful imprisonment, third-degree rape, first-degree sexual abuse, second-degree assault, two counts of third-degree assault, two counts of endangering the welfare of a child, and two counts of second-degree harassment.

Mitchell previously appealed the convictions and the Appellate Division of state Supreme Court, Fourth Department, reserved decision and the case was sent back to Ontario County Court Judge Kristina Karle for further proceedings.

Mitchell again appealed to the Fourth Department, which has again reserved decision and sent the case back to Karle.

In the first appeal, Mitchell argued that Karle should have dismissed the indictment on the ground that the prosecution filed an improper certificate of compliance (COC) and was not actually ready for trial within the required time period.

When a defendant files a motion under Criminal Procedure Law Section 30.30 on the ground that the prosecutor failed to exercise due diligence and therefore improperly filed a COC, the prosecution bears the burden of establishing that they did, in fact, exercise due diligence and make reasonable inquiries prior to filing the initial COC.

The Fourth Department noted that, if the prosecution fails to make such a showing, the COC should be deemed improper and if the time chargeable to the prosecution exceeds the statutory limit, the case must be dismissed.

“On the merits, we agreed with defendant that, contrary to the court’s determination in denying his motion to dismiss the indictment … the People failed to show that they had exercised due diligence and made reasonable efforts to identify mandatory discovery prior to filing their initial COC, and therefore the initial COC was not proper when filed and the People’s declaration of readiness at that time was illusory,” the Fourth Department wrote.

The prosecution initially claimed the victim had no criminal history, which violated their discovery obligation to obtain and disclose the complainant’s criminal history.

“We concluded that the People failed to meet their burden of establishing that they exercised due diligence and made reasonable inquiries prior to filing the initial COC,” the court wrote.

“We further recognized that, inasmuch as the court had determined that the initial COC was proper and thus that the People’s statement of readiness at that time was not illusory, the court did not rule on whether the time chargeable to the People exceeded the applicable CPL 30.30 period,” the court wrote.

Because the failure to rule on that part of defense motion could not be considered a denial, the Fourth Department reserved decision and sent the case back to Karle trule on whether the prosecution was ready within the required time period.

Karle ruled “at the People’s urging, that defendant had never validly moved to dismiss the indictment on the ground that he had been deprived of his statutory right to a speedy trial,” according to the decision.

“The court thus concluded that … it was unable to consider whether defendant was entitled to dismissal of the indictment on that basis,” the Fourth Department wrote.

Mitchell’s appellate lawyer, Brian Shiffrin, argued that the prosecutor’s assertion that Mitchell never made a valid motion to dismiss the indictment on statutory speedy trial grounds “was improperly raised for the first time on remittal and that the court’s reliance on that assertion exceeded the scope of our remittal. “

“We agree,” the Fourth Department wrote.

“We unequivocally determined in our prior decision —and reiterated several times — that defendant had moved to dismiss the indictment pursuant to CPL 30.30 on the ground that the People initially filed an improper COC and were therefore not actually ready for trial within the requisite time period,” the court wrote.

“We concluded that the People failed to meet their burden of establishing that they exercised due diligence and made reasonable inquiries prior to filing the initial COC,” the court wrote.

Although Karle found that the COC was proper and the prosecutor’s statement of readiness at that time was not illusory, she failed to rule on whether the time chargeable to the prosecutor exceeded the applicable period.

The prosecutions argument that the defense never made a valid motion to dismiss the indictment on statutory speedy trial grounds was improperly raised because that assertion “extends beyond the scope of the remittal and was not raised by (the prosecutor) prior to remittal,” according to the decision.

And Karle’s acceptance of the prosecutor’s characterization of the defense motion, and their conclusion that it was unable to consider, on remittal, whether defendant was entitled to dismissal of the indictment on statutory speedy trial grounds, were contrary to our prior determination and “exceeded the scope of the remittal.”

When a case is remanded to a trial court, the trial court has no authority to do anything “except to obey the mandate of the higher court, and render judgment in conformity therewith.”

The Fourth Department sent the case back to Karle again “to determine whether the People were ready within the requisite time period.”

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