Opinion
D-14093/08.
Decided July 2, 2008.
Michael A. Cardozo, Corporation Counsel (Rachel Glantz of counsel), New York City, for Presentment Agency. Tamara Steckler, The Legal Aid Society (Lisa E. Tuntigian of counsel), New York City, Law Guardian.
In this juvenile delinquency proceeding under article 3 of the Family Court Act the Presentment Agency has filed a formal objection to respondent's late filed notice of intent to offer alibi evidence. For the reasons which follow, the Presentment Agency's objection is denied and the proposed alibi evidence is admitted subject to the Presentment Agency's right to seek a reasonable adjournment before the direct testimony of the alibi witness or subsequent thereto.
By petition filed on May 14, 2008 respondent, Kevin B., is alleged to have committed acts which, were he an adult, would constitute the crimes of Grand Larceny in the Fourth Degree and Criminal Possession of Stolen Property in the Fifth Degree. The factual part of the petition alleges that on March 15, 2008 at approximately 3:50 P.M. respondent and an "unapprehended female" stole a "Sidekick" cell phone from the victim on the "N" line subway train in the vicinity of 31st Street and 36th Avenue in Queens County.
On May 14, 2008 respondent appeared before the Court with his father and the initial appearance was conducted (Fam.Ct. Act § 320.1-§ 320.4). Respondent entered a denial to the charges contained in the petition, he was released to the custody of his father, a temporary order of protection was issued and the case was scheduled for June 23, 2008. In the course of the initial appearance, the Assistant Corporation Counsel served the Law Guardian with a voluntary disclosure form which contained, among other items, information concerning the incident and respondent's arrest, the notice of intention to offer evidence of an out-of-court identification by the victim, evidence of respondent's out-of-court statement to police officers ( see, Fam. Ct. Act § 330.2 [2]), and as pertinent to the issue now before this Court, a demand that the respondent serve the Presentment Agency with a notice of alibi containing the information required by Family Court Act § 335.2 in the event that such evidence would be offered as a defense at trial (Voluntary Disclosure Form, ¶ 7 at 3).
Thereafter, on June 11, 2008 respondent's Law Guardian filed a pre-trial motion for discovery and a Bill of Particulars and the motion was granted by written order of the Court dated June 20, 2008. Respondent appeared with his father on June 23, 2008 and the fact-finding hearing commenced. The Presentment Agency called the alleged victim as its witness and the Law Guardian conducted her cross-examination of the victim. At that time, the fact-finding was continued until July 2, 2008 so that the Law Guardian could listen to a tape of a 911 telephone call relating to the incident and for completion of the fact-finding hearing.
Apparently, respondent served a notice of intention to offer alibi evidence as a defense upon the Presentment Agency on June 24, 2008 and that notice may or may not have been filed with the Clerk of Court, although such filing is required by statute (Fam.Ct. Act § 335.2). A written objection was promptly filed with the Court and served upon the Law Guardian by the Assistant Corporation Counsel requesting that the Court exclude the testimony of respondent's father as an alibi witness pursuant to Family Court Act § 335.2 (3).
An accused may raise the defense of alibi at trial. The essence of the defense of alibi is that the accused claims "that at the time of the commission of the crime charged he was at some place or places other than the scene of the crime" and in support of such alibi, the accused offers evidence through alibi witnesses (Fam.Ct. Act § 335.2; Criminal Procedure Law § 250.20). The Family Court Act alibi notice provision applicable to this case reads as follows:
1. At any time not more than fifteen days after the conclusion of the initial appearance and before the fact-finding hearing the presentment agency may serve upon the respondent and file a copy thereof with the court, a demand that if the respondent intends to offer a defense that at the time of the commission of the crime charged, he [she] was at some place or places other than the scene of the crime, and to call witnesses in support of such defense, he must within ten days of service of such demand, serve upon such agency, and file a copy thereof with the court, a "notice of alibi", reciting; (a) the place or places where the respondent claims to have been at the time in question, and (b) the names, the residential addresses, the places of employment and the addresses thereof of every such alibi witness upon whom he [she] intends to rely. For good cause shown, the court may extend the period for service of the notice (emphasis added).
2. Within a reasonable period of time after receipt of the respondent's witness list but not later than ten days before the fact-finding hearing, the presentment agency must serve upon the respondent and file a copy thereof with the court, a list of witnesses such agency proposes to offer in rebuttal to discredit the respondent's alibi at the trial together with the residential addresses, the places of employment and the addresses thereof of any such rebuttal witnesses. A witness who will testify that respondent was at the scene of the crime is not such an alibi rebuttal witness. For good cause shown, the court may extend the period for service.
3. If at the trial the respondent calls such an alibi witness without having served the demanded notice of alibi, or if having served such notice he [she] calls a witness not specified therein, the court may exclude any testimony of such witness relating to the alibi defense. The court may in discretion receive such testimony, but before doing so, it must, upon application of the presentment agency, grant a reasonable adjournment.
4. Similarly, if the presentment agency fails to serve and file a list of any rebuttal witnesses, the provisions of subdivision three shall reciprocally apply.
5. Both the respondent and the presentment agency shall be under a continuing duty to promptly disclose the names and addresses of additional witnesses which come to the attention of either party subsequent to the filing [its] witness list as provided in this section.
A
Because "[t]he adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played" ( Williams v. Florida, 399 U.S. 78, 82; see, Michigan v. Lucas, 500 U.S. 145, 150), states have enacted notice of alibi provisions in their criminal procedure statutes. These notice statutes have been found to be constitutional ( Williams at 85-86; People v. Rodriguez , 3 NY3d 462 , 467), so long as there is a statutory provision for reciprocal disclosure of alibi rebuttal evidence by the parties ( Wardius v. Oregon, 412 U.S. 470, 471; see, People v. Mahaffey, 165 Ill.2d 445, 454, 209 Ill.Dec.246, 252, 651 N.E.2d 174,180 [Sup. Ct. 1995], cert. enied 516 U.S. 1002) The validity of the alibi notice statutes is premised upon the fact that they merely require both parties to accelerate the disclosure of information which they intend to disclose at trial ( Williams v. Florida at 85; People v. Copicotto, 50 NY2d 222, 230). In addition, the alibi disclosure statutes serve the important purpose of eliminating unnecessary surprise, they provide each party with ample opportunity to prepare for trial, and "by increasing the evidence available to both parties, enhances the fairness of the adversary system" ( Wardius v. Oregon at 473-474; see, People v. Brown, 98 NY2d 226, 233; see, Michigan v. Lucas at 150 [notice of prior sexual relationship defense statute as applied to sex offense prosecution]). B
Under the holding of Wardius, a state alibi notice statute which does not provide for reciprocal discovery by the defendant violates the defendant's 5th Amendment and due process rights ( Wardius at 472; People v. Mahaffey 165 Ill.2d at 454).
In Brown the Court of Appeals held that should the defense abandon the alibi defense at trial, the prosecution is precluded from impeaching the defendant with statements contained in the withdrawn notice of alibi ( 98 NY2d at 191; see, People v. Rodriguez, 3 NY2d at 467; People v. Burgos-Santos, 98 NY2d 226, 235 [2002]; State v. O'Neal, 143 N.M. 437, 176 P.3d 1169, 1173 [Ct. App. 2008]).
"Pursuant to CPL 250.20 (1), if the People make a timely demand for notification of an alibi defense, and the defendant intends to assert that defense at trial, the defendant must serve and file a notice of alibi within eight days after service of the People's demand, unless the court extends the period for service of the notice for good cause shown'" ( People v. Brown at 233). While the Family Court Act alibi notice statute contains slightly different time periods owing to the unique time limitations applicable to juvenile delinquency proceedings ( Matter of Frank C., 70 NY2d 408, 412-413; Matter of Randy K., 77 NY2d 398, 402; Matter of George T., 99 NY2d 307, 311-313), it is clear that Family Court Act § 335.2 is derived from Criminal Procedure Law § 250.20 as reflected in the Historical and Statutory Notes (Derivation) for that section, and the official commentary (Besharov and Sobie, Practice Commentaries, McKinney's Cons Laws of New York, Book 29A, Judiciary Law, Fam. Ct. Act § 335.2 at 284 [West 1999]). Thus the cases decided under the Criminal Procedural Law alibi statute relating to untimely notice by the defendant are particularly instructive here.
The Family Court Act alibi notice provision provides that the Presentment Agency may serve its demand between the conclusion of the initial appearance and 15 days thereafter and that respondent serve a notice of alibi within 10 days of the service of the Presentment Agency's demand (Fam.Ct. Act § 335.2 [1]). In addition, after receiving respondent's notice of alibi but not later than 10 days before the fact-finding hearing, the Presentment Agency is required to serve its list of alibi rebuttal witnesses upon the respondent (Fam.Ct. Act § 335.2 [2]). These time periods are subject to enlargement by the Court "for good cause shown" and in a case where the respondent is detained, the Court has authority to set shorter time periods for the notices so as to coincide with the applicable speedy fact-finding period under Family Court Act § 340.1.
The essential facts are not in dispute. The petition was filed and respondent's initial appearance was conducted on May 14, 2008. On that same date the Presentment Agency served its voluntary disclosure form which contains a demand for a notice of alibi if the respondent intended to offer alibi as a defense to the charges in the petition. The demand was therefore timely served upon the respondent and filed with the court as required by Family Court Act § 335.2 (1). Respondent was required to serve his notice of alibi, if any, within ten days of the conclusion of the initial appearance, which would have been May 24, 2008, reckoning the ten day period from May 15, 2008, the day following the conclusion of the initial appearance, since the time period for service of the demand and service of the notice of alibi does not run until the initial appearance is concluded. The fact-finding hearing was commenced on June 23, 2008 and it was then continued until July 2, 2008. Respondent filed his notice of alibi on or about June 24, 2008 which is after the commencement of the fact-finding hearing, 41 days after the date upon which the Presentment Agency served its demand, and eight days prior to there sumption of the fact-finding hearing. Respondent's notice is therefore not timely under the statute.
"A number of days specified as a period from a certain day within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calendar day from which the reckoning is made . . . [i]n computing any specified time period from a specified event, the day upon which the event happens is deemed the day from which then reckoning is made. The day from which any specified period of time is reckoned shall be excluded in making the reckoning" (McKinney's Cons Laws of NY, Book 21, General Construction Law § 20 at 263 [West 2003]; e.g., JP Morgan Chase Bank v. Lowell, 309 AD2d 541, 542).
C
Given the procedural history of this case as recited above and the lack of any prior application by the Law Guardian for an extension of time in which to serve the notice of alibi, this Court must decide whether respondent's alibi witness, his own father, should be precluded from giving testimony in support of the alibi.
In accordance with Family Court Act § 335.2, an accused juvenile delinquent may present an alibi as a defense at a fact-finding hearing and call one or more alibi witnesses to establish the alibi ( e.g., Matter of Gaylord II., 106 AD2d 823, 824; Matter of Carlos R., 162 AD2d 192, 193; Matter of James F., 186 AD2d 358, lv. denied 81 NY2d 702). The right of an accused to call witnesses in his or her defense is a fundamental right and it encompasses the right to call witnesses in support of a claimed alibi ( Webb v. Texas, 409 U.S. 95, 98; Chambers v. Mississippi, 410 U.S. 284, 302; Taylor v. Illinois, 484 U.S. 400, 408; People v. Foy, 32 NY2d 473, 478; People v. Robinson, 89 NY2d 648, 652-653; Matter of John W., 227 AD2d 981; People v. Walker , 28 AD3d 1116 , 1117).
While both Criminal Procedure Law § 250.20 and Family Court Act § 335.2 contain specific time periods for the service of the demand for a notice of alibi and the time in which that notice must be served in response to the demand, those provisions of the statutes both provide that the trial court may extend the time for service of the demand and the notice "for good cause shown". Moreover, given that a fundamental right is involved, the statutes both provide in entirely separate subdivisions that if the defense calls an alibi witness at trial without having served an alibi notice in response to a demand, or if the defense calls an alibi witness not included in a previously served notice, the court may either exclude the proposed alibi testimony or "[t]he court may in its discretion receive such testimony, but before doing so, it must, upon application of the people, grant an adjournment not in excess of three days" (Criminal Procedure Law § 250.20; Fam. Ct. Act § 335.2). That the exclusion of the testimony of an alibi witness is not to be automatically imposed for the failure of defense counsel to serve an alibi notice or for the service of an incomplete notice of alibi is clear from a reading of the statutes themselves.
Without any particular reference to the matter sub judice, it should be noted that depending upon the circumstances of a particular case, the failure to serve a notice of alibi, the failure to obtain an extension of time to serve a notice, or the service of an incomplete notice, may provide the basis for a claim of ineffective assistance of counsel ( see, People v. Milazo, 18 AD3d 1068, 1070 [2005]; People v. Djanie , 31 AD3d 887 , 888 [2006], lv. denied 7 NY2d 866 [2006]).
Rather, where a court is faced with a prosecution objection to the calling of an unnoticed alibi witness the court is required "to engage in the requisite analysis to balance the fundamental character of the defendant's right to offer testimony of witnesses in his favor [against] the interest in the fair and efficient administration of justice" ( People v. Collins , 30 AD3d 1079 , 1079-1080, lv. denied 7 NY3d 811 [internal citation omitted]), which includes a determination of whether the party opposing the testimony has established prejudice. These same considerations are pertinent as well where a defendant objects to the prosecution's calling of an unnoticed alibi rebuttal witness ( e.g., People v. Wiener, 271 AD2d 319, lv. denied 95 NY2d 872; People v. Davis, 289 AD2d 977, lv. denied 98 NY2d 636). Here there is no basis for the Court to find that respondent's failure to timely serve his notice of alibi was willful, done in bad faith, or designed to gain a strategic advantage ( see, People v. Brown, 306 AD2d 12, 13, lv. denied 100 NY2d 592), nor is there any indication that allowing respondent's father to testify as an alibi witness will unduly prejudice the Presentment Agency ( see, people v. Caputo, 175 AD2d 290, 291, lv. denied 78 NY2d 1126; People v. Alvarez, 223 AD2d 401, lv. denied 88 NY2d 980). However, the Presentment Agency is entitled to a reasonable adjournment in order to investigate the specifics of the alibi to be offered and to determine whether there are witnesses who may be called to rebut the testimony of the alibi witness (Fam.Ct. Act § 335.2; Criminal Procedure Law § 250.20).
Because the Law Guardian must rely upon the juvenile client to provide information which would permit the assertion of an alibi defense, counsel may encounter difficulties which might not arise in representing an adult criminal defendant. As observed by the Court of Appeals in a different context, "a juvenile is less likely than an adult to preserve his or her memory concerning [an] incident . . . his whereabouts on relevant dates, the identity of potential witnesses, and other crucial details" ( Matter of Benjamin L., 92 NY2d 660, 669 [1999]).
Accordingly, upon balancing the rights of the parties and the facts of the case, the Court finds that the Presentment Agency's objection to the calling of respondent's father should be overruled, subject to the Presentment Agency's statutory entitlement to a reasonable adjournment owing to the late service of the notice of alibi by the respondent.
This constitutes the decision and order of the Court.E N T E R: