STATUTE OF LIMITATIONS. Statute of Limitations and Speedy Trial CPL ARTICLE 30 2/28/13 3 EVENTS THAT ARE ESSENTIAL IN ANALYZING TIMELINESS

Transcription

1 Statute of Limitations and Speedy Trial CPL ARTICLE 30 3 EVENTS THAT ARE ESSENTIAL IN ANALYZING TIMELINESS Act Commencement Trial Statute of Limitations Speedy Trial STATUTE OF LIMITATIONS 1

2 EXAMPLE STATUTE OF LIMITATIONS The crime is committed on January 2, 2002 The criminal action is commenced on December 5, The time between January 2, 2002 and December 5, 2005 is governed by the statute of limitations STATUTE OF LIMITATIONS: CPL A criminal action must be commenced within the period of limitation. UNLIMITED TIME (EXCEPTION) Class A felonies Rape in the first degree Criminal sexual act in the first degree Aggravated sexual abuse in the first degree Course of sexual conduct against a child in the first degree STATUTE OF LIMITATIONS: CPL A criminal action must be commenced within the period of limitation. PERIODS OF LIMITATIONS PERIOD FIVE YEARS TWO YEARS ONE YEAR FOR Felony Misdemeanor Petty Offense 2

3 SPEEDY TRIAL TYPES OF SPEEDY TRIAL CPL CPL After a criminal action is commenced, the defendant is entitled to a speedy trial. People must be ready for trial within a certain period of time. CPL

4 CPL 30.20: SPEEDY TRIAL After a criminal action is commenced, the defendant is entitled to a speedy trial. Based on the Sixth Amendment CPL FACTORS: People v Taranovich, 37 NY2d 442 (1975) 1 the extent of the delay; 2 the reason for the delay; 3 the nature of the underlying charge; 4 whether there has been an extended period of pretrial incarceration; and 5 whether there is any indication that the defense has been impaired by reason of the delay. 1 TARANOVICH FACTORS: EXTENT OF DELAY whether there is any indication that the defense has been impaired by reason of the delay the greater the delay, the more likely it is that the accused will be harmed Witnesses disappear Memories fade 4

5 2 TARANOVICH FACTORS: REASON FOR DELAY Was the delay the fault of: the prosecution, the court or the defense Was there was a deliberate attempt to delay the trial? 3 TARANOVICH FACTORS: THE NATURE OF THE UNDERLYING CHARGE The more serious the crime, the longer the delay expected before trial. The prosecution is expected to proceed with more caution and deliberation in the case of a felony than in the case of a misdemeanor 4 TARANOVICH FACTORS: EXTENDED PERIOD OF PRETRIAL INCARCERATION A defendant confined to jail prior to trial is at a disadvantage because the defendant is limited in the assistance in the preparation of a defense the defendant in jail might be unable to get evidence or to contact possible witnesses 5

6 5 TARANOVICH FACTORS: DEFENSE IMPAIRED BY DELAY Defendant need not prove s/he was harmed by delay in commencement of trial; reasonableness of a lengthy delay may depend upon whether delay has affected the defendant s chances of acquittal. If delay precipitated by P resulted in unavailability of one or more of the defendant s witnesses If the length of the delay might be expected to affect a witness s ability to articulate exactly what transpired. CPL CPL 30.30: PROSECUTORIAL READINESS RULE Governed by statute Specific times Requires the People to be ready for trial Does not guarantee a speedy trial (there can be defense delays after the People announce their readiness for trial) 6

7 STEPS DETERMINING A SPEEDY TRIAL MOTION STEP-BY-STEP 1 1 Does it apply? 2 2 How much time do the People have? 3 What is the starting date? 4 What is the ending date? 5 Is there enough time? 6 How much time is chargeable? 7 Is there enough chargeable time? 1 STEP-BY-STEP: DOES IT APPLY? CPL 30.30: EXCLUDES CERTAIN HOMICIDES CPL do not apply to a criminal action wherein the defendant is accused of an offense defined in sections , , , , and of the penal law (CPL [3] [a]). 1 STEP-BY-STEP: DOES IT APPLY? CPL 30.30: EXCLUDES CERTAIN HOMICIDES Penal Law Penal Law Penal Law Penal Law Penal Law Penal Law Criminal Negligent Homicide Manslaughter-2 nd Degree Manslaughter-1 st Degree Murder-2 nd Degree Aggravated Murder Murder-1 st Degree 7

8 CPL 30.30: EXCLUDES TRAFFIC INFRACTIONS TRAFFIC INFRACTIONS? VIOLATIONS BUT NOT PETTY OFFENSES CPL (1) refers to Felonies Misdemeanors Violations Since traffic infractions are not any of the above, CPL does not apply to Traffic Infractions 2 STEP-BY-STEP: HOW MUCH TIME DO THE PEOPLE HAVE? Using the highest offense charged and CPL (1), determine the amount of time the People must be ready. TIME LIMITS UNDER CPL (1) OFFENSE Felony Class A Misdemeanor Class B Misdemeanor Violations TIME LIMIT 6 Months 90 Days 60 Days 30 Days 3 STEP-BY-STEP: WHAT IS STARTING TIME? Speedy trial clock starts when the criminal action starts A criminal action commences with the filing of the first accusatory instrument EXCEPTION: If defendant is given an Appearance Ticket, the clock commences when defendant first appears in response to the appearance ticket. 8

9 4 STEP-BY-STEP: WHAT IS ENDING DATE? Generally, the ending point is when the People announce their readiness for trial. PRACTICE: In a motion to dismiss (or if the People did not announce their readiness for trial), the ending point is either The date the speedy trial motion is filed OR The earlier if that period was excluded. READY FOR TRIAL THE PEOPLE S ANNOUNCEMENT Ready for trial two necessary elements. 1 FIRST, there must be a readiness 2 SECOND, there must communication of be a present readiness FIRST REQUIREMENT: COMMUNICATION OF READINESS 1 STATEMENT IN COURT. Statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk 9

10 FIRST REQUIREMENT: COMMUNICATION OF READINESS 2 STATEMENT IN COURT NO DEFENSE COUNSEL PRESENT: If the prosecutor s statement of readiness in open court was made without defense counsel present, the prosecutor would have to promptly notify him of the statement of readiness FIRST REQUIREMENT: COMMUNICATION OF READINESS 3 STATEMENT OUTSIDE COURT: a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record SECOND REQUIREMENT: PRESENT READINESS The second requirement is present readiness, not a prediction or expectation of future readiness. 1 ACCUSATORY INSTRUMENT: People have a valid accusatory instrument upon which the defendant may be brought to trial 2 DEFENDANT PRODUCED: People have complied with their obligation to produce for trial a defendant in their custody 3 PEOPLE COMPLIED: People have complied with all pending proceedings required to be decided before trial can commence 10

11 5 STEP-BY-STEP: IS THERE ENOUGH TIME? The time between the starting date and the ending date must exceed the amount of time the People have in order to be ready for trial [TIME BETWEEN STARTING AND ENDING DATE] MUST BE GREATER THAN [6 MONTHS] [90 DAYS] [60 DAYS] [30 DAYS] 6 STEP-BY-STEP: HOW MUCH TIME IS CHARGEABLE? In order to determine how much time is chargeable you have to EXCLUDE certain periods of delay from the STEP 5 time. CPL (4): In computing the time within which the people must be ready for trial... the following periods must be excluded... You will need to exclude time under CPL (4) METHOD EXCLUDING PERIODS OF DELAY Look at each period of delay Is this delay covered by subdivision 4? If so, it is not a part of the speedy trial time; it is subtracted from the total time 11

12 (4) (a) DELAY CAUSED BY PROCEEDINGS: Excludes a reasonable period of delay (including the time the court considers the proceeding) for: Incompetency: proceedings for the determination of competency and the period during which defendant is incompetent to stand trial; Disclosure: demand to produce and/or request for a bill of particulars (4) (a) DELAY CAUSED BY PROCEEDINGS: Excludes a reasonable period of delay (including the time the court considers the proceeding) for: Motions: pre-trial motions; Appeals; and Other Trial of Defendant: trial of other charges. (4) (b) DELAY CAUSED BY REQUEST OR CONSENT 1 DEFENSE REQUEST OR CONSENT: the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his counsel. 12

13 (4) (b) DELAY CAUSED BY REQUEST OR CONSENT 2 COURT S ROLE: The court must grant such a continuance only if it is satisfied that postponement is in the interest of justice, taking into account the public interest in the prompt dispositions of criminal charges. (4) (b) DELAY CAUSED BY REQUEST OR CONSENT 3 WHERE THERE IS NO COUNSEL: A defendant without counsel must not be deemed to have consented to a continuance unless he has been advised by the court of his rights under these rules and the effect of his consent (4) (c) DELAY CAUSED BY ABSENT OR UNAVAILABLE DEFENDANT ABSENT OR UNAVAILABLE DEFENDANT: the period of delay resulting from the absence or unavailability of the defendant. 13

14 (4) (c) DELAY CAUSED BY ABSENT OR UNAVAILABLE DEFENDANT ABSENT: A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence. UNKNOWN LOCATION (4) (c) DELAY CAUSED BY ABSENT OR UNAVAILABLE DEFENDANT UNAVAILABLE: A defendant must be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence LOCATION KNOWN, BUT DEFENDANT CANNOT BE SEIZED (4) (c) DELAY CAUSED BY ABSENT OR UNAVAILABLE DEFENDANT or DEFENDANT ESCAPED DEFENDANT FAILED TO RETURN TO COURT DEFENDANT NOT IN CUSTODY 14

15 (4) (d) DELAY CAUSED BY CO- DEFENDANT If there is a co-defendant and the speedy trial clock stops for that defendant, it also stops for the other defendant(s) UNLESS: If good cause is shown for granting separate trials the time will not be excluded (4) (e) DELAY CAUSED BY CUSTODY IN ANOTHER JURISDICTION the period of delay resulting from detention of the defendant in another jurisdiction provided the district attorney is aware of such detention and has been diligent and has made reasonable efforts to obtain the presence of the defendant for trial (4) (f) DEFENDANT WITHOUT COUNSEL f) the period during which the defendant is without counsel through no fault of the court; except when the defendant is proceeding as his own attorney with the permission of the court This includes the delay caused by the defense counsel not showing up. 15

16 (4) (g) EXCEPTIONAL CIRCUMSTANCES Adjournment requested by People: unavailability of evidence material to case People exercised due diligence to obtain such evidence, AND reasonable grounds to believe that such evidence will become available in a reasonable period (4) (g) EXCEPTIONAL CIRCUMSTANCES People need additional time to prepare for trial additional time is justified by the exceptional circumstances of the case. 7 STEP-BY-STEP: IS THERE ENOUGH CHARGEABLE TIME? Was the defendant denied his/her right to a speedy trial? TOTAL TIME Time between the starting time and the ending time EXCLUDABLE - = TIME Total of the excluded periods of delay CHARGED TIME 16

17 DRAFTING A SPEEDY TRIAL MOTION FACTS APPLICATION DRAFT METHOD DRAFTING SPEEDY TRIAL MOTIONS: STEP- BY-STEP ONE STEP-BY-STEP MOTIONS: PART ONE: GATHERING FACTS Gather relevant facts that will allow you to make a speedy trial motion or to answer one. Gather all the procedural facts of what happened between the commencement of the criminal action and the time you make the motion IF... DRAFTING SPEEDY TRIAL MOTIONS: STEP-BY-STEP IF THE CHARGED TIME IS GREATER THAN THE ALLOWED STATUTORY PERIOD CAN I MAKE THE MOTION? 6 months for felonies 90 days for class A misdemeanors 60 days for class B misdemeanors 30 days for violations THEN... THEN A SPEEDY TRIAL MOTION CAN BE MADE 17

18 ONE GATHERING FACTS, Continued The source of your facts: 1 your attorney s notes; 2 the accusatory instrument; and 3 transcripts of court proceedings. TWO APPLYING FACTS TO THE LAW Now that you have all the facts, you need to apply these facts to all the law you have learned in earlier. There is four steps you will have to go through to complete Part Two. TWO STEP 1 STEP 2 STEP 3 STEP 4 APPLYING THE FACTS: THE 4-STEP PROCESS DETERMINE......which period of delay applies....the starting date....when the speedy trial clock stopped....the total chargeable time 18

19 ! BEFORE YOU START R E M E M B E R SPEEDY TRIAL DOES NOT APPLY TO: HOMICIDES: If defendant is charged with a homicide listed in CPL (3) (a), speedy trial does not apply. TRAFFIC INFRACTIONS: If only counts are traffic infraction, speedy trial does not apply. 1 DETERMINING WHICH PERIOD OF DELAY APPLIES (CPL [1]) What you need to do is look at the first accusatory instrument (usually the misdemeanor or felony complaint) and see what the highest court was (i.e., a felony, class A or B misdemeanor or violation). REDUCTION: If it was a felony, but the highest count now is a misdemeanor, see CPL (5) (c) to figure out what time period applies. 1 DETERMINING WHICH PERIOD OF DELAY APPLIES (CPL [1]) FELONY CLASS A MISD CLASS B MISD VIOLATIONS 6 MONTHS 90 DAYS 60 DAYS 30 DAYS 19

20 2 DETERMINING THE STARTING DATE All you need to do is find out is the date of commencement: that is, the date the People filed the first accusatory instrument with the court (usually the day of arraignment or the day before). APPEARANCE TICKET: However, if the defendant was given an appearance ticket, then it is the date the defendant first appeared in response to the appearance ticket (CPL [5] [b]). If you look at the court file, you will be able to determine this. 3 DETERMINING WHEN THE SPEEDY TRIAL CLOCK STOPPED. The date the speedy trial clock stops for the purpose of a speedy trial motion is actually the date of the motion itself. When the defendant files the motion, the speedy trial clock will stop pursuant to CPL (4) (a) since it is a pre-trial motion. Another reason it is the end date is that the defendant will not be able to address any periods of delay in the future. 3 DETERMINING WHEN THE SPEEDY TRIAL CLOCK STOPPED. Once you have the stop date, you will be able to make a quick assessment of whether a speedy trial motion is possible. If the amount of time between the step two and step three time is more that the step one time, then go to step four. If it is not more than the step one time, it is impossible to make a speedy trial motion at this time. 20

21 4 DETERMINING TOTAL CHARGEABLE TIME The rule is that all time is chargeable to the People unless there is an exclusion under CPL (4). In this step you will make a chart covering all periods of delay from the start date to the end date. 4 DETERMINING TOTAL CHARGEABLE TIME You will start with the starting date and look for the date where a subdivision four exclusion occurs. For example demand for discovery, request for a bill of particulars, pre-trial motion, consent adjournment or requested adjournment. That will be the first period and it will be charged to the People. 4 DETERMINING TOTAL CHARGEABLE TIME The next period will be the excluded period. This period starts with the date of the subdivision four exclusion event and ends with the end of that event. For example: if a defendant serves a demand for discovery on the People, the date that demand is served starts the exclusionary period; when the People provide discovery, the period concludes and speedy trial clock starts again. The third period is chargeable to the People and will start with that start date and continues until an subdivision four event occurs. 21

22 4 DETERMINING TOTAL CHARGEABLE TIME This period-by period analysis continues until you reach the date of the motion. Now you need to determine the total time chargeable to People all periods minus excluded periods. If this total is over the step one time, you can then make a motion. PART 3 PART THREE: DRAFTING A MOTION: CONVERSION FROM CHART TO MOTION Take the chart and make whole sentences 3 CONVERSION FROM CHART TO MOTION Once you have completed Part two, you can start drafting a motion. There are five steps to this part: RELIEF (1) Relief sought and the conclusion INTRO (2) Introduction/Set-up LAW (3) Law dealing with what you are about to do ENGLISH CONCLUSION (5) Conclusion (4) English! Converting chart into complete sentences and arguments 22

23 4 PART FOUR: THE ACTUAL MOTION THE FINAL PART! This is the actual motion using the set of facts and analysis in parts one through three. Always use proper citation!!! (TANBOOK!!!) THE END 23