The DA: Not Ready When You Are
THURSDAY, MARCH 26, 2009

An article written by Thomas O'Brien, a staff attorney in the Special Litigation Unit of the Criminal Practice, appeared in yesterday's edition of The New York Law Journal. The article, "The DA: Not Ready When You Are," is a thoughtful, incisive piece.

The New York Law Journal
The DA: Not Ready When You Are
Thomas M. O'Brien
03-25-2009

There is a scenario that occurs in New York City Criminal Court in numerous cases. A case is scheduled for a trial to begin on a particular date. The accused appears in court. The defense attorney is there. The judge is there. Court personnel are there. They are present to begin a criminal trial, the crown jewel of the Anglo-American legal system.

At that point, the prosecutor on the case, or the designated courtroom assistant district attorney, announces that the prosecution is "not ready" for the trial. An adjournment is requested. The judge sets a new date for trial, some two or three months into the future, and the parties disperse. Presumably, the defendant's statutory right to a speedy trial - 90 days for a misdemeanor,1 will prevent the prosecutor from causing similar delay again.

That might have been the intent of the Legislature, but the reality of the administration of criminal justice in New York City is radically different. Two or three days after the "not ready" prosecutor has thwarted the trial from taking place, the same prosecutor often files an "off-calendar" Certificate of Readiness. Now the ADA is "ready" for trial, with the assurance that no trial will take place because the case is not scheduled on that date. The parties will not reassemble until the formal adjourned date, two or three months hence, that had earlier been set when the prosecutor claimed to be "not ready."

On the adjourned date, the same charade is often reenacted. By being "unready" (and getting the long adjournment), and then declaring "ready" two days later, the prosecution will be charged, for "speedy trial" purposes, with only the first two days of the adjournment period. The misdemeanor case may ultimately be dismissed on speedy trial grounds, but after the other participants have endured a year or a year and a half (not 90 days) of this frustration.

This scenario is replayed continually in criminal court.2 Here is a typically perfunctory reference in a judicial opinion: "On March 10, the People were not ready, and the case was adjourned to June 9, for trial. On March 11, the People filed and served a certificate of readiness. Thus, 1 day is chargeable to the People (see People v. Stirrup, 91 NY2d 434, 440 [1998])."3 The prosecutor's unreadiness results in a real-time delay of 90 days, but in the alternate universe of "speedy trial" calculations, only one day has accrued.4

In Stirrup, the cited authority for this practice, the Court of Appeals permitted the single off-calendar statement of readiness in that case to stop the speedy trial clock. However, the actual readiness for trial of the prosecution was not disputed. Stirrup does not stand for the use to which it has been put, whereby the off-calendar "ready" pretense is reenacted repeatedly in a single case.

This practice imposes an enormous waste of resources on the administration of justice. The 2007 Annual Report of the Criminal Court reported more than 536,472 cases calendared in the "all-purpose parts," where pretrial proceedings in misdemeanors are held.5 The average life of a case in an all-purpose part is longer than ever - 100 days in 2007, compared to 67 days in 1997.6 (Stirrup was decided in 1998.) Yet, the total number of misdemeanor trials that took place in New York City Criminal Court in 2007 was only 409.7

The number of trials is meager, but cases are dragging on longer and the number of court appearances is ever-increasing. Any practice that prolongs the life of numerous cases, while subjecting the participants to the aggravation and expense of multiple court appearances in which nothing happens, is one that court administrators should take a hard look at.

Yet the most damaging aspect of the practice is not its cost to the "system." It is its effect on individual prosecutors who perpetrate it. Deception as a routine tactic is corrosive.

Has the prosecutor ascertained that the police and civilian witnesses are truly available to appear in court on the selected "ready" date, that date on which no one else is ready? There is no Inspector General of the court system to investigate and confirm retrospectively which off-calendar "ready" statements were true and which were untrue. But the "off-calendar" declaration of "ready" is plainly not made to facilitate a trial; it is made to avoid a trial.

The casual deception is especially disturbing in view of who is doing it. On the prosecution side, the Criminal Court is largely staffed by attorneys only a few months or years admitted to practice. They have all taken Professional Responsibility in law school. They have all studied for, and passed, the separate section of the bar exam dealing with an attorney's ethical obligations, the Multistate Professional Responsibility Examination. In addition, each must attend a special one-day session devoted to professional ethics that is required by both the First and Second departments.8

The obligation of honesty in dealing with other parties in the justice system is not just a high-minded aspiration. Disciplinary Rule 1-102(4) commands a lawyer to not "Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." The Court of Appeals has stated that prosecutors in particular, as counsel for the government, have "an unqualified duty of scrupulous candor."9

The supervisors in the district attorneys' offices have a heavy responsibility here. Newly admitted attorneys arrive in their offices each fall, fresh from the serious ethical instruction of the law school and bar admission processes. After a few months on the job, these ethical precepts should not become faint memories from another life.

The Court of Appeals may some day correct the misuse of People v. Stirrup with respect to repeated off-calendar readiness declarations. For the time being, there is a measure that lower court judges can take to prevent abuse. They should require, whenever a prosecutor declares "not ready" on a trial date and requests an adjournment, that the prosecutor advance the case for a prompt trial if an off-calendar certificate of readiness is filed.

If the statement of readiness is genuine, and not, as the judicial euphemism has it, "illusory," a prosecutor who is not just trying to stop the speedy trial clock should have no problem complying with the condition and making a speedy trial a reality.

Thomas M. O'Brien is an attorney with the special litigation unit of the Criminal Defense Practice of The Legal Aid Society.

Endnotes:

1. CPL §30.30(1)(b). This article focuses on misdemeanor prosecutions in Criminal Court. Felony cases have longer speedy trial limits (180 days), and other complicating factors.

2. A few judges have criticized the abuses of "ready" declarations by the prosecution. See, e.g., People v. Khachiyan, 194 Misc. 2d 161, 164-65 (Crim. Ct. Kings Co. 2002) (decrying "the promiscuous use of the word 'ready' by the People;" see also People v. Lin Chen, 21 Misc. 3d 1123 (Sup. Ct. Kings Co. 2008) ("apparently pro forma statement of readiness" belied by later delays; felony charge dismissed)

3. People v. Jeffrey Stewart, 21 Misc.3d 1109 (Crim. Ct. NY Co. 2008)

4. In one recent case, the prosecution tried to have zero days of a 77-day adjournment chargeable where the prosecutor had declared "not ready" in the morning, but then filed a certificate of readiness later in the day, when the defendant was no longer present. This was a bit much for the Court, which charged one day of the period to the prosecution. People v. Farrell, 21 Misc.3d 579, 581-84 (Crim. Ct. Bronx Co. 2008). The prosecutor was then "not ready" on the next three court dates. Id. at 584.

5. 2007 Annual Report of the Criminal Court at 42. This number apparently reflects the total number of appearances in AP parts, not the total number of cases.

6. Id. at 41.

7. Id. at 54. This figure does not include the Bronx, where the Criminal Court has been merged with the Supreme Court.

8. First Department Rule 602.3; Second Department Rule 690.21.

9. People v. Hameed, 88 NY2d 232, 238 (1996)