NY Sexual Offense Conviction Dismissed on Appeal

Sexual Offense Allegations and Sexual Abuse Criminal Cases are about as difficult as they come so the decision as to whether to go "jury" or "bench" is a consideration for which this appeal reverses the judge's conviction. What is inexcusable, is the failure to file a motion to dismiss for speedy trial violations.

In People v. Garai, The judgment convicted defendant, after a nonjury trial, of attempted forcible touching, sexual abuse in the third degree and harassment in the second degree. The criminal defense attorney, before trial, could have but failed to move for dismissal of the charges because of the New York Prosecutor's failure to announce "ready for trial."

The lower court, the Criminal Court of the City of New York, Kings County, On March 26, 2016, the People filed a misdemeanor complaint charging defendant with forcible touching (Penal Law §130.52 [1]), sexual abuse in the third degree (Penal Law §130.55) and harassment in the second degree (Penal Law §240.26 [1]), and defendant was arraigned thereon. The court adjourned the case to May 10, 2016 for conversion of the misdemeanor complaint to an information.

Eventually the case was tried (Joanne D. Quiñones, J.) and the Defendant was found guilty. The Convicted Sex Offender submits on appeal that "among other things, that his counsel was ineffective because she failed to make a motion to dismiss on statutory speedy trial grounds." In this case, "The People concede that there is no written statement of readiness in the court file and there was no oral statement of readiness which appears in any of the minutes contained in the record other than a statement of readiness that was made on February 27, 2017," nearly a year and well over six (6) months since felony statutory speedy trial limitations contained within Criminal Procedure Law Article Thirty (30).

The Appellate Court reverses, on the law, and the accusatory instrument is dismissed. The Appellate Court (Supreme Court, First Judicial Department) evaluates the standards for effective assistance of counsel and finds that it was lacking in this case for the failure to, among other things, file a motion to dismiss or hold the People to its requirement to timely be ready and try New York Criminal Cases:

To be entitled to relief under the New York State Constitution on the ground of ineffective assistance of counsel, a defendant must establish that his counsel did not provide him with meaningful representation (see People v. Benevento, 91 NY2d 708, 713 [1998]; People v. Baldi, 54 NY2d 137, 147 [1981]; see also People v. Caban, 5 NY3d 143, 152 [2005]). Under the federal standard of review, a “defendant must show that counsel’s performance was deficient…[and] that the deficient performance prejudiced the defense” (Strickland v. Washington, 466 US 668, 687 [1984]). Since defendant was initially charged with class A misdemeanors, the People were required to be ready for trial within 90 days of the commencement of the action (see CPL 30.30 [1] [b]; see also People v. Lomax, 50 NY2d 351, 356 [1980]).

New York Criminal Defense Attorneys are required to understand what a legally sufficient accusatory instrument is and to ensure that the Defendant's Constitutional and Statutory Speedy Trial Rights are not violated. It is or should be well known that "Once a defendant has shown the existence of a delay greater than 90 days [in a misdemeanor violation], the burden of showing that certain periods of time should be excluded falls on the People." Id. (citing People v. Brown, 28 NY3d 392, 403 [2016]; People v. Luperon, 85 NY2d 71, 81 [1995]; People v. Berkowitz, 50 NY2d 333, 349 [1980]). The People failed to do so here. The Appellate Court states the failure of the People and, unfortunately, the Criminal Defense Attorney's Failure to Provide Effective Assistance Counsel insofar as:

The People cannot assert their readiness to proceed to trial until there is an accusatory instrument sufficient for trial (see People v. Colon, 59 NY2d 921 [1983], revg 122 Misc 2d 790 [App Term, 1st Dept 1982] for reasons stated in 110 Misc 2d 917 [Crim Ct, NY County 1981] [the People cannot be ready on an unconverted misdemeanor complaint]; see also People v. Wilson, 86 NY2d 753, 754-755 [1995] [the People were ready for trial once they had "possessed a valid accusatory instrument"]; People v. Caussade, 162 AD2d 4, 8 [1990] ["present readiness for trial is established when the People have a valid accusatory instrument upon which the defendant may be brought to trial"]; People v. Reyes, 70 Misc 3d 133[A], 2020 NY Slip Op 51569[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).

The People's failure to be ready for trial requires dismissal - the Court notes that "since defendant has established that more that 90 days are chargeable to the People,...the People exceeded the 90-day statutory limit," establishes entitlement to dismissal. Criminal Defense Attorneys must do more than simply show up and, here, on appeal, the "defense counsel’s failure to move to dismiss the information based upon the People’s noncompliance with the statutory speedy trial requirement was sufficiently egregious to constitute the denial of meaningful representation." (citations omitted).

The case is People v. Garai, where the First Department, Supreme Court finds that "further prosecution on this information is not possible due to the impermissible statutory speedy trial delay, the information must be dismissed." Sexual Offender Charges Dismissed!

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)

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