Opinion
Docket No. CR-010236-21KN
01-11-2022
The PEOPLE of the State of New York v. Jamal CASTELLO, Defendant.
For the People: Keerthana Nunna, Kings County District Attorney's Office For the defendant: Khadeya Penson, The Legal Aid Society
For the People: Keerthana Nunna, Kings County District Attorney's Office
For the defendant: Khadeya Penson, The Legal Aid Society
Michael D. Kitsis, J. The defendant, charged with one count each of Driving While Intoxicated ( V.T.L. § 1192(3) ) and Driving While Ability Impaired ( V.T.L. § 1192(1) ); now moves for an order dismissing the information pursuant to C.P.L. §§ 30.30(1)(b), 170.30(1)(e).
After careful review of the defendant's motion, the People's response, and all relevant legal authority, the motion to dismiss is denied. The Court finds that 81 chargeable days have accrued since arraignment.
April 19, 2021 — May 24, 2021
On April 19, 2021, the defendant was arraigned on a misdemeanor complaint on which the highest charge was an unclassified misdemeanor, punishable by a maximum imprisonment term of one year. Thus, the People had 90 days to be ready to proceed to trial. C.P.L. § 30.30(1)(b). The People were not ready for trial and the case was adjourned to May 24, 2021 for conversion and for the People to complete their discovery obligations. The day of arraignment is excluded from the calculation. Gen. Constr. L. § 20.
35 chargeable days.
May 24, 2021 — August 11, 2021
On May 24, 2021, the People had not completed discovery and were not ready for trial. The case was adjourned to August 11, 2021. On July 9, 2021, the People served and filed a certificate of compliance with their discovery obligations and a statement of readiness for trial. Therefore, the People are not charged for the remainder of the adjournment. See People v. Brown , 28 N.Y.3d 392, 404, 45 N.Y.S.3d 320, 68 N.E.3d 45 (2016).
46 chargeable days.
August 11, 2021 — August 20, 2021
On August 11, 2021, the case was heard and the Court ordered the lawyers to confer regarding any outstanding discovery. The defendant was given leave to renew his argument regarding the sufficiency of the People's Certificate of Compliance after conferring with the assigned ADA and the case was adjourned to August 20, 2021. Because the People had previously made a valid statement of readiness for trial and the delay was not caused by the People, the adjournment is excluded.
0 chargeable days.
August 20, 2021 — September 29, 2021
On August 20, 2021, the People maintained their readiness for trial. The case was adjourned for the defendant to challenge the People's Certificate of Compliance, for the defendant to serve and file his reciprocal Certificate of Compliance as required by C.P.L. § 245.50(2), and to select a date for hearings and trial. Because the People were ready for trial and the adjournment was not caused by the People, but rather was for the defendant to file a challenge or his reciprocal COC, the adjournment is excluded. C.P.L. § 30.30(4)(a).
0 chargeable days.
September 29, 2021 — October 28, 2021
On September 29, 2021, the case was adjourned to October 28, 2021 for final conference. The defendant had not filed his reciprocal Certificate of Compliance, as required by C.P.L. § 245.50(2). The People had previously announced their readiness for trial and the delay was not caused by the People, so the adjournment is excluded.
0 chargeable days.
October 28, 2021 — December 2, 2021
On October 28, 2021, the defendant ultimately raised no objections to the People's Certificate of Compliance and the Court directed the defendant to serve and file his reciprocal Certificate of Compliance by the end of business that day. The case was adjourned to December 2, 2021 for hearings and trial. The People had previously announced their readiness for trial and the delay was not caused by the People, so the adjournment is excluded. Additionally, on November 30, 2021, the defendant filed a motion to dismiss. Delays for motion practice are excluded, so the period following November 30, 2021 is also excluded for that reasons. C.P.L. § 30.30(4)(a).
0 chargeable days.
December 2, 2021 — December 7, 2021
On December 2, 2021, the Court denied the defendant's motion made on November 30, 2021. The defendant's motion relied on a challenge to the sufficiency of the People's Certificate of Compliance, which was based on the failure to disclose underlying documents related to police officer misconduct pursuant to C.P.L. § 245.20(1)(k). There is no binding appellate case law that requires the People to make these disclosures, and trial courts have split on the issue. In denying the defendant's motion, the Court adhered to its previous ruling in People v. McKinney , 71 Misc. 3d 1221(A), 2021 WL 2006850 (Crim. Ct. Kings Co. 2021).
The People were not ready for trial because the arresting officer, a necessary witness for the hearings on the defendant's motions to suppress, had recently begun paternity leave due to the unexpectedly early birth of his child. The People had apprised the Court and defense counsel of the officer's unavailability as soon as the People learned of it, and stated on the record that they expected the officer to return from leave on December 4, 2021. The People requested five days and the case was adjourned to December 7, 2021 for hearings and trial.
The People assert that the arresting officer is required for the People to proceed on the defendant's motion for a Wade /Dunaway hearing. See People v. Malinsky , 15 N.Y.2d 86 (1965) (People have the burden of going forward with evidence on a motion to suppress). The case is unable to proceed to trial until the suppression motion is decided. Compare People v. McKenna , 76 N.Y.2d 59, 64, 556 N.Y.S.2d 514, 555 N.E.2d 911 (1990). The defendant is entitled to a decision on the suppression issue; consequently, the People must be given an opportunity to go forward with the evidence they need to meet their burden at that hearing. It would be impractical to require the People to be ready for trial and not permit an exclusion when the only barrier to trial is the defendant's suppression motion and the unavailability of a witness required for that motion. Nor are the People required to allege that the unavailable witness is necessary to the ultimate question of innocence or guilt. See People v. Bullock , 136 A.D.3d 518, 26 N.Y.S.3d 17 (1st Dept. 2016) ; People v. McLeod , 281 A.D.2d 325, 722 N.Y.S.2d 507 (1st Dept. 2001). Therefore, the fact that the People have established the necessity of the arresting officer to the suppression hearing but not the trial does not affect the applicability of the exceptional circumstance exception of C.P.L. § 30.30(4)(g) to this case.
The People's request was based on the initial end date of the officer's paternity leave. While on leave, the officer briefly extended his absence and so the People renewed their application for an adjournment on the following court date.
The unavailability of a necessary witness can constitute an exceptional circumstance that warrants an exclusion of speedy trial time under C.P.L. § 30.30(4)(g). See People v. Zirpola , 57 N.Y.2d 706, 454 N.Y.S.2d 702, 440 N.E.2d 787 (1982) ; People v. Blacks , 153 A.D.3d 720, 61 N.Y.S.3d 66 (2d Dept. 2017). See also People v. Goodman , 41 N.Y.2d 888, 393 N.Y.S.2d 985, 362 N.E.2d 615 (1977). The People's unrefuted assertion that the officer was on paternity leave is sufficient to support the People's claim for an excludable adjournment. See People v. Alcequier , 15 A.D.3d 162, 163, 788 N.Y.S.2d 389 (1st Dept. 2005). In addition, the People attached to their papers a letter from Lieutenant Anil George of the NYPD, dated December 14, 2021, stating that P.O. Anthony Vargas had been on paternity leave since November 28, 2021 and was expected to return to work on December 14, 2021. This constitutes sufficient "evidence to substantiate their claim of the officer's unavailability" and the People "were not required, in order to invoke the statutory exemption, to show that the witness was hospitalized, completely immobile or totally incapacitated." People v. Martinez , 268 A.D.2d 354, 354-55, 701 N.Y.S.2d 425 (1st Dept. 2000). No amount of diligence by the People would have made the arresting officer available during the period in which he was on paternity leave, compare People v. Mack , 300 A.D.2d 254, 752 N.Y.S.2d 313 (1st Dept. 2002).
Additionally, the fact that the arresting officer went on paternity leave on November 28, 2021 does not render the People's July 9, 2021 statement of readiness for trial illusory. There is no evidence that the officer would not have been available on July 9, 2021, or that the People were not otherwise ready for trial on that date.
The defendant argues that the People should be charged for this adjournment because the People were not ready for trial and posits that paternity leave is not an exceptional circumstance. The Court disagrees.
The fact that the arresting officer was on paternity leave and not, as was the case in People v. Silverstri , on maternity leave, is a distinction without a difference. See People v. Silverstri , 48 Misc. 3d 810, 9 N.Y.S.3d 767 (Crim. Ct. N.Y. Co. 2015). As the Court in Silverstri observed, "Some women recover faster than others, some infants require more care, some families need time to find a reputable and affordable childcare provider, and there may be other unforeseen issues." Id. at 815, 9 N.Y.S.3d 767. Notably, only the first factor articulated by the Silverstri Court refers specifically to the child-bearing parent. A witness's personal medical unavailability is not the only consideration; infant care and the need to find appropriate childcare, as well as assisting the child-bearing parent in their recovery, are also appropriate concerns that justify paternity leave as well as maternity leave. Although a witness's personal medical unavailability can constitute an exceptional circumstance, the exclusion is not limited to that situation alone. See People v. Price , 14 N.Y.3d 61, 896 N.Y.S.2d 719, 923 N.E.2d 1107 (2010) ; People v. Smietana , 98 N.Y.2d 336, 746 N.Y.S.2d 678, 774 N.E.2d 743 (2002).
A witness's need to care for a family member as a result of the family member's medical condition has been deemed an exceptional circumstance that renders the witness unavailable to the People. See , e.g. , People v. Barnett , 158 A.D.3d 1279, 71 N.Y.S.3d 775 (4th Dept. 2018) (exclude day witness's father had surgery); People v. McFaline , 167 A.D.3d 465, 89 N.Y.S.3d 160 (1st Dept. 2018) (exclude time witness caring for ill father); People v. Harden , 6 A.D.3d 181, 778 N.Y.S.2d 7 (1st Dept. 2004) (exclude time witness absent due to his mother's hospitalization); People v. Chavis , 238 A.D.2d 349, 350, 656 N.Y.S.2d 64 (2d Dept. 1997), rev'd on other grounds by 91 N.Y.2d 500, 673 N.Y.S.2d 29, 695 N.E.2d 1110 (1998) (exclude time witness was "needed at home as the sole care-giver of his cancer-stricken father"); People v. Rodriguez , 212 A.D.2d 368, 622 N.Y.S.2d 243 (1st Dept. 1995) (exclude time witness caring for ill father); People v. Familia-Morel , 151 Misc. 2d 55, 570 N.Y.S.2d 895 (Crim. Ct. Queens Co. 1991) (exclude time witness's infant daughter hospitalized). See also People v. Lopez , 2 A.D.3d 234, 768 N.Y.S.2d 468 (1st Dept. 2003) (exclude time witness unavailable due to family tragedy).
Other trial courts that have considered the issue have held that the paternity leave of a necessary witness constitutes an exceptional circumstance. E.g. , People v. Massay , NYLJ 1202801035699, at *1, 2017 NYLJ LEXIS 3028 (Crim. Ct. Kings Co. 2017); People v. Lee , 15 Misc. 3d 1137(A), 2007 WL 1470177 (Crim. Ct. N.Y. Co. 2007) ; see also People v. James , 170 A.D.3d 477, 96 N.Y.S.3d 36 (1st Dept. 2019) (excluding period of time witnesses, a married couple, were unavailable because they were caring for their newborn). It is well documented that paternity leave "can promote parent-child bonding, improve outcomes for children, and even increase gender equity at home and at the workplace. Paid parental leave for fathers, as well as for mothers, provides a real advantage to working families." U.S. Department of Labor Policy Brief, "Paternity Leave: Why Parental Leave for Fathers Is so Important for Working Families," available at dol.gov/sites/dolgov/files/OASP.legacy/files/PaternityBrief.pdf (last visited Jan. 6, 2022). See also Nathaniel Popper, "Paternity Leave Has Long-Lasting Benefits. So Why Don't More American Men Take It?" NY Times, Apr. 17, 2020, available at nytimes.com/2020/04/17/parenting/paternity-leave.html (last visited Jan. 10, 2022). While the defendant's speedy trial rights are not to be minimized, this Court finds no countervailing consideration that outweighs the significant societal interest parental leave promotes, and the Court sees no principled basis to hold that maternity leave, but not paternity leave, constitutes an exceptional circumstance.
The People have established an exclusion pursuant to C.P.L. § 30.30(4)(g) in that the arresting officer was a necessary witness; he was unavailable as a result of his paternity leave; and "during the period of unavailability, [the People] diligently kept themselves and the court apprised of [his] expected return date." People v. Womack , 229 A.D.2d 304, 304, 645 N.Y.S.2d 16 (1st Dept. 1996), aff'd 90 N.Y.2d 974, 665 N.Y.S.2d 952, 688 N.E.2d 1034 (1997). Therefore, the adjournment is excluded. See People v. Goodman , 41 N.Y.2d 888, 393 N.Y.S.2d 985, 362 N.E.2d 615 (1977).
It is also notable that P.O. Vargas's paternity leave is the simplest of situations. The leave came about due to the unexpected early birth of his child. Thus, the People could not have anticipated their witness's absence ahead of time. Moreover, the length of the officer's paternity leave was brief, indicating that the leave was taken on an emergency basis. Compare People v. Lucero , 21 Misc. 3d 412, 863 N.Y.S.2d 881 (Crim. Ct. N.Y. Co. 2008). The Court need not determine whether a more prolonged, anticipated leave for childcare would be similarly excludable.
0 chargeable days.
December 7, 2021 — December 14, 2021
On December 7, 2021, the People were not ready for trial because the arresting officer remained out on paternity leave. The fact that the People required other witnesses, whose availability was not subject to an exclusion, is immaterial; the People were unable to proceed without the arresting officer. Since no amount of diligence on the part of the People to produce additional witnesses to Court would have negated the need for delay caused by the arresting officer's unavailability, the People were not required to make further efforts to produce additional witnesses. Compare People v. Pressley , 115 A.D.2d 228, 496 N.Y.S.2d 147 (4th Dept. 1985). The Court will not require the People to bring witnesses to Court on a date when the People are unable to proceed because a necessary witness remains unavailable. The case was adjourned to December 14, 2021 for hearings and trial. The adjournment is excluded pursuant to C.P.L. § 30.30(4)(g).
0 chargeable days.
December 14, 2021 — January 11, 2021
On December 14, 2021, the People were not ready for trial because the arresting officer was still on paternity leave and expected to return on December 20, 2021. The People stated they could go forward with portions of the hearing, but that the arresting officer's testimony was required for the People to meet their burden with respect to the Dunaway issue. Defense counsel stated she would file a motion to dismiss, and she did file the instant motion that same day. The People were directed to respond to the motion by December 27, 2021; due to the holiday recess, the case was adjourned to January 11, 2021 for decision on the motion and for hearings and trial. Delays for motion practice are excludable pursuant to C.P.L. § 30.30(4)(a).
Although the letter from Lieutenant George indicated that the officer was expected to return to work on December 14, 2021, the Court need not decide whether the C.P.L. § 30.30(4)(g) exception continued to apply, because the defendant filed the instant motion on December 14, 2021.
0 chargeable days.
Since the People are within their allowed speedy trial time, the defendant's motion to dismiss is denied.
The foregoing constitutes the Decision and Order of the Court.