Opinion
4732/04.
Decided November 1, 2005.
By a motion dated August 31, 2005 and filed September 1, 2005, the defendant moved to dismiss this indictment charging Gang Assault in the First Degree and related charges on the ground the defendant has been denied his statutory, CPL § 30.30 (1) (b), and constitutional, CPL § 30.20, rights to a speedy trial.
However, the defendant's motion makes no argument justifying a dismissal on constitutional speedy trial grounds. Accordingly, that branch of the motion is summarily denied for failure to set forth sworn allegations of fact supporting all essential elements necessary to grant the motion on this ground. CPL § 210.45 (5) (b); People v. Taranovich, 37 NY2d 442 (1975).
The People filed an answer, dated September 21, 2005, opposing dismissal on CPL § 30.30 grounds. The People did not respond to the defendant's CPL § 30.20 claim, perhaps because the People did not notice that the defendant's motion also made reference to that separate statute.
The central issue on this motion is whether the People are entitled to an exclusion of chargeable time under CPL § 30.30 (4) (g) for the period of time the complaining witness was in the military service in Korea.
ADJOURNMENT HISTORY
The defendant was arrested on July 7, 2004 and charged in a misdemeanor complaint with Assault in the Third Degree and lesser charges arising from an incident that took place a month before on June 7, 2004. The complaint was filed on July 8, 2004. Because felony charges were later filed on this indictment, the People had six months from this date, or 184 days minus excludable time, to be ready for trial. CPL § 30.30 (1) (a); People v. Cooper, 90 NY2d 292 (1997).
The defendant was arraigned in Criminal Court on July 8, 2004. The case was adjourned to July 13, 2004 for filing of a supporting deposition to convert the complaint to an information: 5 days chargeable. CPL § 100.10 (1) and (4).
On July 13, 2004, the People filed a supporting deposition, and the defendant waived discovery motions. The case was adjourned to July 20, 2004 for hearings and trial. Although the People would be entitled to an exclusion of a reasonable amount of time to prepare for the pre-trial hearings that were ordered on July 13, 2004, there is no claim submitted on this motion asserting that the People announced their readiness for trial on July 13, 2004. In their answer, the People do not discuss this adjournment. Accordingly, this time period is chargeable: 7 days. CPL § 30.30 (1) (b).
On July 20, 2004, the case was adjourned to August 3, 2004. The People do not offer an explanation for this adjournment. Accordingly, it is chargeable: 14 days. CPL § 30.30 (1) (b); People v. Berkowitz, 50 NY2d 333, 348 (1980).
On August 3, 2004, the People announced that an indictment covering these charges had been filed, and the case was transferred to Supreme Court for arraignment. This indictment was, in fact, filed on August 3, 2004 along with a Statement of Readiness which was served on defense counsel the next day. Because the People do not have control over the Supreme Court arraignment calendar, the time from the filing of the indictment and a Statement of Readiness to the arraignment is excludable. People v. Goss, 87 NY2d 792 (1996).
The defendant was arraigned in Supreme Court in Part 20 on August 26, 2004. The case was adjourned to October 7, 2004 for open file discovery and the Court's inspection of the Grand Jury minutes in lieu of motion practice. This time is excludable. CPL § 30.30 (4) (a).
On October 7, 2004, the case was adjourned to December 7, 2004 for completion of discovery and the Court's decision on the Grand Jury minutes. In the interim, the case was placed on the calendar for bail applications, but, nevertheless, the adjournment to December 7, 2004 is excludable due to pre-trial discovery motions. CPL § 30.30 (4) (a).
On December 7, 2004 in Part 20, the Court adjourned the defendant's case to January 31, 2004 for suppression hearings and trial. The co-defendant on the indictment, Travis Boyd, plead guilty to Attempted Assault in Second Degree. The Court also handed down its decision on the sufficiency of the Grand Jury minutes, dismissing for reasons not relevant to this motion the charge of Menacing in the Second Degree and a charge against the co-defendant of Unlawful Possession of Marijuana. This adjournment is excludable. The People are entitled to a reasonable adjournment following a decision on a pre-trial dismissal motion to assemble their witnesses for a suppression hearing and trial, and it appears that the adjourned date was set by the Court and not at the People's request. CPL § 30.30 (4) (a); People v. Dean, 45 NY2d 651, 657 (1978); People v. Vasquez, 3 AD3d 343 (1st Dept. 2004); People v. Green, 90 AD2d 705, 706 (1st Dept. 1982).
On January 31, 2005, the People informed the Court that the complaining witness was in the Army, stationed in Korea, and was due to be back in April of 2005. The case was adjourned to April 13, 2005. Whether these 72 days and subsequent similar adjournments are chargeable will be discussed below.
On April 13, 2005, the People were again not ready due to the complaining witness's military assignment, and the case was adjourned 43 days to May 26, 2005. The complaining witness had not come back as had been expected.
On May 26, 2005, the case was adjourned 13 days for the same reason to June 8, 2005 and transferred to this Court in Part 80.
On June 8, 2005, the People stated the complaining witness was due to return to the United States in July. The People were directed to ascertain the complainant's military address which they still did not have, contact him directly, which they still had not done, and find out when the complaining witness would be available to testify. The People's actions in response to the Court's direction will also be discussed below. The case was adjourned 9 days to June 17, 2005.
On June 17, 2005, the case was adjourned 20 days to July 7, 2005 for a conference, with a tentative trial date set for July 19, 2005.
On July 7, 2005, the Court was told that the complaining witness was still out of the country, and the case was adjourned 42 days to August 18, 2005.
On August 18, 2005, the Court was told that the witness was stationed in Fort Knox, Kentucky and did not want to come back to New York to testify. The case was adjourned 14 days to September 1, 2005.
On September 1, 2005, the defendant filed this motion to dismiss, thereby resulting in the exclusion of CPL § 30.30 time while this motion was pending. CPL § 30.30 (4) (a).
DISCUSSION
Based on facts asserted in the People's answer and accompanying supporting exhibits, as well as oral argument on this motion before me on October 6, 2005, additional information was developed concerning the efforts made by the People to obtain the presence of the complaining witness. These efforts are relevant in determining whether the above adjournments should be excluded pursuant to CPL § 30.30 (4) (g) (i). That statute would allow for exclusion of adjournments caused by the complaining witness's military service in Korea if, "the District Attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period."
On June 7, 2004, the date of the crimes charged, the complaining witness was here in Brooklyn on a two-week military leave. He had been stationed in Korea. On or about August 12, 2004, he returned to military service in Korea after recovering from the injuries allegedly sustained during this incident. (The witness returned after the People's August 3, 2004 Statement of Readiness but prior to the defendant's August 26, 2004 Supreme Court arraignment.)
During the time the complaining witness was in Korea from August 2004 to June 2005, the People never attempted to contact him directly. They did not even attempt to obtain his military address. Neither did the People attempt to contact anyone in the military either to verify that the complaining witness was, in fact, stationed in Korea or to ascertain if the complaining witness would be permitted to travel to New York to testify in this case. Instead, the People relied on information provided by "the complainant's family" that he would be home in April of 2005. Even after the complaining witness did not return in April of 2005, as the People on January 31, 2005 had told the Court he would, no efforts were made to contact the complaining witness until June of 2005.
Although CPL § 30.30 (4) (g) has been held to exclude CPL § 30.30 time when a material witness was in military service as an "exceptional circumstance," the statute also requires a finding that the witness is "unavailable" and the District Attorney has exercised due diligence to obtain the presence of the witness.
For example, in People v. Williams, 293 AD2d 557 (2nd Dept. 2003), as revealed in the facts contained in the opinion below, reported at 2001 WL 914251 (Supreme Court, Queens County), the witness was a police officer assigned to military duty in Kosovo, and the People were "advised through official police channels" that he would not be available until his military service was completed.
In People v. Grady, 111 AD2d 932 (2nd Dept. 1985), the opinion stated that the witness was unavailable due to military service. Although the opinion does not state what, if any, efforts the People made to obtain the presence of the witness, the Court in its opinion determined the witness was, in fact, "unavailable" and not merely in the military. In contrast, there is nothing in this record to show that the complaining witness in this case was "unavailable" other than that he was in the Army stationed in Korea.
The recently decided case of People v. Rodriguez, 8 Misc 3d 1013A (Supreme Court, Bronx County, 2005) found that a witness being overseas on active military duty was an "exceptional circumstance" but also required that "due diligence" be used to obtain the presence of the witness for the time to be excluded under CPL § 30.30 (4) (g). In that case, the time was excluded because the United States government would not disclose either the location of the witness or when the witness would return, and, therefore, nothing more could be done to obtain the presence of the witness. In this case, as noted, no efforts were made to obtain the presence of the witness until June 2005.
To be entitled to the exclusion under CPL § 30.30 (4) (g), it must be shown that the People have "exercised due diligence to obtain" (emphasis added) the presence of the witness. It cannot be assumed that the military would have refused the People's request to allow the witness to travel back to New York. To make this assumption would relieve the People of their CPL § 30.30 (4) (g) obligation to make some effort to ascertain the availability of the witness. No legal presumption exists allowing the People to establish that a soldier stationed overseas will not be permitted by the military to travel back to the United States to testify at a criminal trial.
In People v. Zirpola, 57 NY2d 706, 708 (1982), the Court of Appeals stated, "The unavailability of a prosecution witness may be a sufficient justification for delay, provided the People attempted with due diligence to make the witness available." (Emphasis supplied, citations omitted). In this case, no attempt was made to make the witness available. Instead, the People relied on hearsay (that proved to be untrue) from the witness's family that the witness would be returning to New York at some unspecified time in April of 2005 and then passively waited for the witness to show up on his own. This is not the "due diligence" required by CPL § 30.30 (4) (g) to justify an exclusion of this time.
In People v. Khan, 146 AD2d 806, 807 (2nd Dept. 1989), the delay caused by a material witness's reluctance to come to New York from Florida to testify was excluded pursuant to CPL § 30.30 (4) (g), because the People exercised due diligence in preparing a material witness order to obtain the presence of the witness. See also, People v. Belgrade, 226 AD2d 550 (2nd Dept. 1996) (time excluded because prosecutor exercised due diligence in sending a letter directly to the witness who had unexpectedly left the country for Trinidad); People v. Figaro, 245 AD2d 300 (2nd Dept. 1977) (Kings County conviction reversed because People were not shown to have exercised due diligence to obtain presence of the complaining witness by merely making "a few phone calls and one visit to the complainant's home" over a two-month period); People v. Meyers, 114 AD2d 861 (2nd Dept. 1985) (People did not demonstrate the type of credible, vigorous activity necessary to demonstrate that due diligence was used to make a recalcitrant witness available); People v. Warren, 85 AD2d 747 (2nd Dept. 1981) (Kings County conviction reversed because, despite the People's claims of a large caseload, the complaining witness was not contacted by investigators from the District Attorney's Office for almost five months).
As noted at the oral argument of this motion, the reason that no attempt was made to bring the complaining witness back from Korea may very well have been the cost of a round trip flight and other related travel expenses for the complaining witness that would have had to have been borne by the District Attorney's Office. To avoid this expense, it seems the People were willing to wait until April of 2005, which is when the complaining witness's family informed the People he would be home on leave. Notably, the People did not even attempt to verify this date directly with the complaining witness whose address they did not know or attempt to obtain. Thus, the People had no advance notice when in April of 2005 the complaining witness stayed in Korea for his two weeks of leave.
On June 8, 2005, when the case first appeared in Part 80, the People told the Court the witness was due home sometime in July. The People were directed to ascertain more information and contact the complaining witness directly. The People did so and also contacted military officials to ascertain how to obtain permission to have the witness released from military duty to testify. On the next adjourned date, June 17, 2005, the People informed the Court of the witness's schedule, and a trial date was set for July 19, 2005. The People had contacted the Chief of the General Litigation Branch of the United States Army, Lieutenant Colonel Michael G. Seidel, to assist in obtaining the witness's presence.
On July 6, 2005, the People received an e-mail from Lt. Colonel Seidel informing them that the witness was scheduled to depart Korea on July 7, 2005 and was due in Fort Knox, Kentucky on August 10, 2005. The e-mail contained directions concerning which military official to contact at Fort Knox to obtain the presence of the witness. The People informed the Court of these circumstances on July 7, 2005, and the case was adjourned to August 18, 2005.
In the interim, the People by letter dated July 21, 2005, contacted the Judge Advocate staff at Fort Knox as suggested by Lt. Colonel Seidel in his e-mail.
On August 18, 2005, the People informed the Court that because the complaining witness did not want to return voluntarily from Fort Knox, a material witness order would be needed and requested an adjournment to September 1, 2005.
On August 19, 2005, the People spoke with the complaining witness's commanding officer who said the complainant would come back voluntarily and could be available "within 72-hours." Based on this new information, the People filed on August 23, 2005, and served by mail, a Statement of Readiness.
This motion to dismiss was filed in September 1, 2005, making it unnecessary to obtain the presence of the witness in the event the motion was granted.
Once the People began to use due diligence and contacted military officials pursuant to the Court's directions on June 8, 2005 to obtain the presence of the witness, the time is excludable pursuant to CPL § 30.30 (4) (g).
The complaining witness left Korea on July 7, 2005 with orders to report to Fort Knox, Kentucky on August 10, 2005. Although there was a theoretical window of 34 days for the complainant to come to New York to testify between the Korea departure and the date he was due in Fort Knox, it would be unrealistic to require that the People have arranged for the complaining witness to testify during this 34-day period.
This 34-day computation disregards the possible effect of the International Dateline. If the complaining witness had, in fact, left Korea on July 6th, it may have been July 5th in New York due to the 13-hour (daylight saving) time difference. Nevertheless, the Court acknowledges the insight into this issue provided by Jules Verne in his novel, Around the World in Eighty Days.
First, the People were not informed that the complainant was leaving Korea until the day before via the July 6, 2005 e-mail from Lt. Colonel Seidel.
Second, the complainant, after a year in Korea, apparently did not wish to spend his leave time in Brooklyn, particularly when no definite trial date had been set at that point. As was stated on the oral argument of this motion, the complaining witness went to South Carolina during this period before reporting to Fort Knox. After being in Korea for almost a year serving his country, the complaining witness's desire to spend his leave time as he wished is entitled to some judicial deference as an "exceptional circumstance" pursuant to CPL § 30.30 (4) (g), given the fact that the complaining witness would be available within a reasonable period following his arrival at Fort Knox. Under the circumstances, this period should be excluded where the alternative may have been to arrest the complaining witness pursuant to an inter-state material witness order. CPL § 640.10 (3); People v. Parker, 186 AD2d 593 (2nd Dept. 1992). The People knew the complaining witness had to be at Fort Knox by August 10, 2005, and, having exercised due diligence at this point, it was not inconsistent with the use of due diligence to wait until he got there to continue their efforts through the military to obtain his presence in New York.
Finally, if the complaining witness did not wish to go to New York to testify during this period, the People would be entitled to some reasonable time, as indicated by the above-cited cases, to locate him in the United States and use legal process to bring him to New York. See, People v. Chan, 81 AD2d 765 (1st Dept. 1981) (People entitled to a reasonable period of time to prepare paperwork to produce and then transport a defendant from an out-of-state prison).
Therefore, the time period from June 8, 2005 to September 1, 2005 is excluded. CPL § 30.30 (4) (g). Not only had the People exercised due diligence during this period but also, based on the information received from the military, there were "reasonable grounds to believe the witness would become available within a reasonable period" after departing Korea and arriving at Fort Knox.
The Court notes that the People take the position on this motion that the time the complaining witness was in Korea is not chargeable even thought no effort was made to obtain his presence until June 2005. On the other hand, even though due diligence was being used to obtain the witness's presence after June 8, 2005, the People concede to be charged with the time beginning from when the complaining witness departed Korea for the United States on July 7, 2005 until a Statement of Readiness was filed on August 23, 2005. If this Court were to agree with the People's concession of this 47-day period, the defendant's motion would have to be granted. Nevertheless, because the Court finds the facts to warrant excluding this period, the People's concession to charge this 47-day period is not accepted in this decision.
SUMMARY
The People are chargeable with the following time periods:
— July 8, 2004 to July 13, 2004: 5 days
— July 13, 2004 to July 20, 2004: 7 days
— July 20, 2004 to August 3, 2004: 14 days
— January 31, 2005 to June 8, 2005: 128 days
This totals 154 days of chargeable time which is less than the 184 days permitted.
Accordingly, the motion to dismiss is denied.