Opinion
Ind. No.2626/2012
02-18-2014
THE PEOPLE OF THE STATE OF NEW YORK v. KEVIN EDWARDS, Defendant
Dineen A. Riviezzo, J. S.C.:
Defendant moves to dismiss the indictment pursuant to CPL § 30.30, and based on a violation of constitutional speedy trial requirements.
The instant criminal action was commenced for speedy trial purposes on March 27, 2012, when a felony complaint was filed. The People have six months (here, 184 days) to be ready for trial.
The following time periods are to be considered: • March 27, 2012 to May 4, 2012: The People filed the indictment and a statement of readiness on May 4, 2012. A valid statement of readiness is effective as of the date it is filed with the court, as long as defense counsel is promptly notified. See People v. Anderson, 252 A.D.2d 399, 400 (1st Dept 1998). The time up to the filing of the statement of readiness is includeable. 38 days charged. • May 4, 2012 to May 22, 2012: The case was adjourned for arraignment to May 22, 2012. Defendant was arraigned on that date. The court notes that pursuant to People v. Carter, 91 N.Y.2d 795, 799 (N.Y. 1998), the People are charged only with the time until they file a statement of readiness, and not with the subsequent delay in arraigning the defendant. Defendant indicated that the People violated CPL § 190.50 and the court set a motion schedule. 0 days charged. • May 22, 2012 to October 12, 2012: Defendant served a motion pursuant to CPL § 190.50. The motion to inspect the Grand Jury minutes was granted and a decision rendered on October 12, 2012. See People v. Roebuck, 279 A.D.2d 350, 351 (N.Y. App. Div. 1st Dep't 2001) (period of time from the making of defendant's omnibus motion to the dismissal of the indictment pursuant to CPL 190.50 is not chargeable to the People). During this time period, defendant was also assigned new counsel. 0 days charged. • October 12, 2012 to January 22, 2013: The case was adjourned for discovery. See People v. Dorilas, 19 Misc.3d 75 (App. Term, 2d Dept. 2008) (period of time during which parties engaged in discovery by stipulation was excludable). 0 days charged. • January 22, 2013 to February 8, 2013: Adjourned on consent by both parties for possible disposition. 0 days charged. • February 8, 2013 to April 4, 2013: No disposition. Adjourned on consent by both parties and for a reasonable time for the parties to prepare for trial. 0 days charged. • April 4, 2013 to May 1, 2013: People not ready for trial. Requested two weeks. The case was adjourned for hearing and trial. 14 days charged. • May 1, 2013 to June 6, 2013: Hearing held. Adjourned for reasonable time for the parties to prepare for trial. 0 days charged. • June 6, 2013 to June 17, 2013: People not ready for trial. (People failed to account for this period of time in their opposition to the motion). 11 days charged. • June 17, 2013 to October 8, 2013: Defendant requested adjournment for religious observation and due to the death of defendant's son. 0 days charged. • October 8, 2013 to November 8, 2013: People not ready for trial. People requested November 8, 2013 adjourn date. 31 days charged. • November 8, 2013 to December 12, 2013: People not ready for trial. People requested December 11, 2013 adjourn date. 33 days charged. • December 12, 2013 to January 3, 2014: People not ready for trial. People requested January 3, 2014. 23 days charged. • January 3, 2014 to January 15, 2014: People not ready for trial. Defendant filed the instant motion pursuant to CPL § 30.30 on January 15, 2014. 12 days charged. Exceptional Circumstances
The People argue that the entire period from October 8, 2013 to January 15, 2014 (99 days) should be excluded based on "exceptional circumstances" due to the unavailability of the complainant. People v. Zirpola, 57 N.Y. 2d 706 (1982). Specifically, the People assert that complainant represented that he was attending school outside of New York State and that he failed to honor his verbal commitment to appear in Kings County for trial. (Memo in Opp. at p. 4). However, the People are required to show due diligence to make the witness available. Id. "In order to demonstrate due diligence, the People must undertake credible, vigorous activity to make a witness available." People v. Figaro, 245 A.D. 2d 300 (2 Dept. 1997).
Here, the People have failed to establish diligent efforts to secure complainant's appearance at trial. To the extent that the People argue that they were unaware of the complainant address or the name of the school he was attending out of state, the People do not assert that any effort was made to locate complainant, for example, based on his cell phone usage or through social media. The People assert that complainant may have been living with his uncle in Raleigh, North Carolina. Yet, no efforts were made to contact his uncle. The People further claim that complainant agreed to be available in Kings County on January 3, 2014. However, their one attempt to serve a subpoena at complainant's last know address in Brooklyn was made on January 2, 2014 - the day before complainant agreed to be in New York State. (Memo in Opp. at p. 8). There is also no evidence that the People requested judicial intervention for a material witness order. Such efforts fall short of the due diligence required to establish "exceptional circumstances." People v. Figaro, 245 A.D. 2d 300 (2 Dept. 1997) (holding that a few phone calls and one visit to complainant's home fell short of satisfying People's due diligence burden). Defendant's Due Process/Speedy Trial Arguments
Defendant argues that his rights to a speedy trial were violated under the State and Federal Constitutions. The following factors should be examined in balancing the merits of an assertion that there has been a denial of defendant's right to a speedy trial: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; whether or not there has been an extended period of pretrial incarceration; and (4) whether or not there is any indication that the defense has been impaired by reason of the delay. People v Taranovich, 37 NY2d 442, 444-445 [citations omitted]. None of these factors indicate that defendant's rights were violated.
Conclusion
The foregoing time periods amount to 162 days, which is within the allotted statutory time period. Only 22 days remain within the statutory period. Accordingly, this action is set for trial on March 12, 2014 at 10:00 a.m. which is 22 days from the date of this decision and the next court date. The People will be charged with this entire time unless they file and serve a statement of readiness which affirms that the complainant has been contacted and is, in fact, available for trial and cooperating with the prosecution. Absent such a statement of readiness the indictment will be dismissed on March 13, 2014.
The motion is denied.
This is the Order of the Court.
__________________________
J.S.C.
HON. DINEEN ANN RIVIEZZO