Opinion
Docket No. CR-003398-23NY
08-02-2024
The People of the State of New York v. Jose Flores, Defendant.
Unpublished Opinion
Robert Rosenthal Judge of the Criminal Court
On July 29, 2024, the People made an oral application for an exceptional circumstances exclusion of speedy trial time pursuant to Criminal Procedure Law § 30.30 (4) (g). Defendant orally responded. After consideration of the caselaw supplied by both parties and a review of the court file, the People's application is granted.
Relevant Procedural History
On February 4, 2023, defendant was arraigned on an accusatory instrument charging him with Endangering the Welfare of a Child (Penal Law § 260.10 [1]), a class A misdemeanor.
On May 2, 2023, the 87th day after arraignment, the People filed and served a Certificate of Compliance (COC) and Certificate of Readiness (COR), off-calendar. On the following court appearance of June 1, 2023, defense counsel stated she had no objections to the People's COC or COR.
On the 7 court dates following the People's initial COR - June 1, 2023, July 19, 2023, August 2, 2023, September 11, 2023, October 4, 2023, October 26, 2023, and November 28, 2023, the People announced ready for trial, but defendant was not ready for trial.
On January 8, 2024, the People filed and served a supplemental COC and COR. The newly disclosed material consisted of updated and additional law enforcement disclosures, the latter of which the People had inadvertently failed to initially disclose.
On the court date of January 9, 2024, the People again announced ready for trial for the eighth time, and defendant requested a motion schedule to challenge the COC, and pursuant to CPL 30.30, based on the belatedly disclosed items, as well as items that defendant believed to be discoverable that were not disclosed. The court set a motion schedule and adjourned the case to February 26, 2024, for decision. Defense counsel did not file motions during this period.
On January 19, 2024, the People filed and served a second supplemental COC and COR. The newly disclosed discovery consisted of text messages between the complainant and the assigned Assistant District Attorney from January 9, 2024.
On the court date of February 26, 2024, the court set a second motion schedule and adjourned the case to March 15, 2024, for decision. On March 8, 2024, the People filed and served a third supplemental COC and COR in response to defendant's motion.
In a decision dated March 15, 2024, a judge of this courthouse issued a decision denying defendant's motion "given defense counsel's extensive and unreasonable delay" in contacting the People regarding discovery, and in filing the motion. That court did not rule on the validity of the People's COC but directed them to disclose certain items within 20 days and file and serve a supplemental COC.
The People complied with the court's directive and filed supplemental COCs and CORs on March 22, 2024, and March 28, 2024. The People filed a sixth supplemental COC and COR on April 15, 2024, containing newly obtained, more detailed phone records, as well as information about witness fees. On April 16, 2024, the People filed and served a seventh supplemental COC and COR, containing newly created Witness Aid documents from the DA's office, as well as photographs newly provided by the complainant's mother. On May 6, 2024, the People filed and served an eighth supplemental COC and COR, which included items requested by the defense in April of 2024.
On the court date of April 3, 2024, both parties announced ready for trial. This was the ninth time the People answered ready. The court does not have information as to why the trial did not proceed on that date.
On the court date of April 18, 2024, the People announced ready for trial for the tenth time. A motion for a Huntley hearing was denied as untimely, and there was a discussion regarding discovery. The court does not have information as to the defense readiness or why the trial did not proceed on that date.
On the court date of May 20, 2024, both parties were ready for trial - the eleventh time for the People, however, there were no trial parts available. The court set a firm trial date of July 29, 2024, and instructed the parties not to engage in anything else.
On the court date of July 29, 2024, the People announced not ready because their complainant was unavailable and requested an exclusion of speedy trial time under CPL 30.30 (4)(g)(i). Defendant announced ready for trial.
The Application for a CPL 30.30 (4)(g) Exclusion
The People ask the court to grant an exceptional circumstances exclusion of speedy trial time under CPL 30.30 (4)(g)(i) because the thirteen-year old complainant - a material witness - became unavailable for trial on July 29, 2024, when her father took her to Florida on vacation, without regard to the trial schedule. The People state that they exercised due diligence in attempting to secure her appearance at trial and that the complainant will be available to testify the following week (August 5 - August 9). The People further note that they have been ready numerous times since May of 2023.
Concerning the complainant's unavailability and the People's efforts to secure her appearance, the People state the following:
On July 11, 2024, at 5:39 PM, the ADA received a text message from the complainant's mother that her daughter (the complainant) was going on vacation July 19 until August 4, and then would again be away from August 5 through August 17 or 18. The text message also stated that the mother needed to go to California from August 10-18. She also conveyed that she was "not giving up the case no matter what" and that there has not been justice for her daughter. The People provided a copy of this text message to the court and defense.
After receiving the text message, at 5:50 PM that day, the ADA called the complainant's mother and spoke with her about the trial date and vacation. The People provided a screenshot of the outgoing call to the court and defense. The complainant's mother explained that the complainant's father, from whom she is separated, planned a vacation with his daughter to Florida, without consideration of the trial date. The ADA offered to fly the complainant to New York from Florida to testify, and offered to fly a family member with the complainant, due to the mother's concerns about the daughter flying alone. The mother did not think this would be possible.
On July 16, 2024, the ADA served a cover letter and subpoena on the complainant, commanding her presence in court on July 29, 2024, for trial. The subpoena notes "IF YOU FAIL TO ATTEND, you may be adjudged guilty of a Criminal Contempt of Court, and liable to a fine of one thousand dollars and imprisonment for one year." A copy of this subpoena and cover letter was provided to the court and defense.
After receiving the subpoena, on Wednesday (apparently July 17), at 2:42 PM, the complainant's mother sent two text messages to the ADA expressing that she was upset with the possibility of her daughter being charged with criminal contempt. The ADA responded that she would call her shortly. The People provided a copy of this text message to the court and defense.
On July 17, 2024, at 3:30 PM, the ADA spoke by telephone with the complainant's mother. The People provided a screenshot of the outgoing call to the court and the defense. According to the text messages that followed (copies of which were provided to the court and defense), and the People's application, the ADA explained the subpoena process to the complainant's mother and that this was done in furtherance of her efforts to have the complainant present for trial. According to the People, the mother stated she would speak to the father about moving the trip, but they do not have a great relationship, and she was hesitant to do so. The ADA then obtained the phone number of the complainant's father.
On July 18, 2024, the ADA again texted and then spoke with the complainant's mother by phone. A screenshot of the text message and outgoing call were provided to the court and defense.
On July 18, 2024, at 4:14 PM, the ADA called the complainant's father. A screenshot of the outgoing call indicates it lasted 32 seconds. According to a text message, the ADA left a voicemail. At 4:32 PM, the ADA sent a photograph of her business card to the complainant's father, explaining that she had left a voicemail and would like to speak about a case where his daughter is a witness. She requested that he call when he could. The People provided a copy of these text messages to the court and defense.
On July 19, 2024, at 10:00 AM, the ADA called the complainant's father, and they spoke for eleven minutes. The People provided a screenshot of this outgoing call to the court and defense. According to the People, the father stated that he booked a vacation to Florida with his daughter without knowing about the court date, and that he would lose a lot of money if the People flew the complainant back to New York, and he was not willing to do that.
The People note that the complainant is currently in Florida and they do not have subpoena power in Florida, although they mentioned the possibility of a material witness order. Finally, although the mother had initially stated the complainant had another trip planned on August 5, 2024, that trip could be postponed so that the complainant could testify the week of August 5.
In opposition, defendant argues that the absence of a material witness due to vacation is not an exceptional circumstance for the purpose of CPL 30.30 (4) (g) and that the People were not diligent in their efforts to secure the complainant's appearance.
Discussion
Pursuant to CPL 30.30 (4) (g) (i), a period of delay due to "exceptional circumstances" may be excluded if the district attorney's request for a "continuance is granted because of the unavailability of evidence material to the people's case, when 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."
The Court of Appeals has established that delay due to the unavailability of a prosecution witness may be excludable as an exceptional circumstance under CPL 30.30 (4)(g) where the People diligently attempted to make the witness available (People v Zirpola, 57 N.Y.2d 706, 708 [1982]; see also People v Womack, 229 A.D.2d 304 [1st Dept 1996] [People must establish (1) witness is material; (2) reasonable belief witness will become available soon; and (3) diligent attempt to produce witness at trial]). Determinations on whether delays should be excluded for witness unavailability, including due to vacations, are fact specific and dependent on whether the prosecution exercised due diligence in attempting to secure the witness. The burden is on the People to establish that they have exercised the requisite diligence (People v Boyd, 189 A.D.2d 433, 436-437 [1st Dept 1993]). Such diligence may be demonstrated where they have exercised "credible, vigorous activity" to secure the witness (People v Figaro, 245 A.D.2d 300 [2d Dept 1997] quoting People v Washington, 43 N.Y.2d 772, 774 [1977]).
For example, in People v Elijah (272 A.D.2d 273 [1st Dept 2000]), the First Department affirmed an exceptional circumstance exclusion "due to the sudden, unexpected unavailability of the complaining witness and the due diligence of the prosecution in attempting to locate her." The Elijah court did not provide the reason for the witness' failure to appear. In People v Belgrave (226 A.D.2d 550 [2d Dept 1996]), the Second Department held that an exceptional circumstance exclusion was warranted where, unbeknownst to the prosecutor, the complainants and their parents left the country for vacation and were thus unavailable to testify before the Grand Jury. The court held that the prosecutor exercised sufficient diligence by leaving two messages and sending a letter instructing them to contact her as soon as they returned (id).
Defendant relies on several cases in which courts declined to exclude time where witnesses failed to appear due to vacation or travel plans. These cases are not persuasive here for several reasons. First, contrary to defendant's argument, these cases do not stand for the proposition that vacation or travel cannot serve as a basis for a CPL 30.30 (4) (g) exclusion. Rather, the cases turn on the People's efforts to secure the witness' attendance. Thus, the mere fact that a vacation rendered the complainant unavailable on a scheduled trial date is not dispositive.
Second, the facts of the cases cited by the People are distinguishable from the facts here. In those cases, CPL 30.30 (4) (g) exclusions were denied because the People failed to exercise due diligence in securing the witness attendance. In People v Ricart (153 A.D.3d 421, 422 [1st Dept 2017]), the People failed to communicate with their witness about his planned trip to the Dominican Republic - even though prior to purchasing his ticket, the witness made the prosecutor aware of his intention to travel and indicated a willingness to work with the prosecutor on scheduling around the trial dates. In People v Cruz (78 Misc.3d 9, 14-15 [App Term, 2d Dept, 11th & 13th Jud Dists 2022]), the People's periodic attempts to telephone the witness did not constitute due diligence where the People were unaware of the witness' whereabouts for months and never subpoenaed him, while in fact he could have appeared during several periods if called to testify (id. at 15). In People v Harrison (171 A.D.3d 1481, 1484 [4th Dept 2019]), "the People did not establish that they exercised due diligence to secure the witness's presence on the scheduled trial date." There, it appears the People's CPL 30.30 (4) (g) request was limited to a sole claim that a "critical witness[ ] was scheduled to be on a pre-paid vacation" (id. at 1483 ["the mere fact that a necessary witness plans to go on a vacation does not relieve the People of their speedy trial obligation"][internal citations omitted]). In People v Rahoman (54 Misc.3d 353, 356 [Crim Ct, Queens County 2016]), the People's effort to secure the witness was a single phone call to the child complainant's mother, who told the People of her plan to send the child out of the country. In People v Accetta (17 Misc.3d 126 [A], 2007 NY Slip Op 51807 [U], *2-3 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]), the prosecutor did not subpoena material witnesses who had gone on vacation because she did not want to disturb the trip. Finally, in People v Keling (59 Misc.3d 1204 [A], 2018 NY Slip Op 50370 [U], *3 [Sup Ct, NY County 2018]), the People did not even claim to have made any effort to secure the witness' testimony.
Here, the People's efforts were far greater than those in the cases on which defendant relies. Upon learning of the father's intent to take the child out of state, the prosecutor contacted the mother and offered to assist the family with the complainant's travel plans. When it was apparent her efforts might be fruitless, the prosecutor sent a letter and served a subpoena, which stated the consequences of defying the subpoena. She then contacted the mother again and discussed whether the mother could speak to the father about changing their plans. The prosecutor then contacted the father. Notwithstanding all of that, the father took the complainant to Florida. Short of requesting a material witness order, by which the child would be held in custody for trial - which could not have been granted in this misdemeanor case, for a number of reasons - the People's efforts were diligent and sufficient to support their CPL 30.30 (4) (g) application.
Defendant suggests that diligence would require service of a trial subpoena at the time the July 29, 2024 trial date was set. In fact, on May 20, 2024, when the date was set, the prosecutor alerted the child's mother by text message of the July 29 trial date, and the mother responded "Ok great." As the child has been cooperative and available to testify for numerous dates when the People answered ready, the People had no reason to suspect that a subpoena would be appropriate or necessary.
It is not in dispute that the complainant is a material witness or that she will be available to testify within a reasonable period - here, a week. At issue is only whether the People exercised due diligence in attempting to secure her appearance for trial. They did. For that reason, the People's application is granted.
It bears noting that, as is the case with any application, a CPL 30.30 (4) (g) request is considered in the context of the entire case. Here, the People have announced their readiness for trial on 11 court dates since filing their first COR on May 2, 2023. The defendant was not ready on any of the first 7 dates, and then requested a motion schedule on the eighth date when the People were also ready. Had defendant been ready on any of the 7 trial dates between June 1, 2023, and November 28, 2023, when the People were ready, there would have been no occasion for the instant CPL 30.30 (4)(g) application. This trial would have been complete long ago. To be sure, it is the reason for a witness' unavailability and the People's diligence toward making the witness available that determines whether the CPL 30.30 (4)(g) exclusion will be granted. Defendant's delays themselves do not constitute an exceptional circumstance, absent some finding of bad faith (People v Jones, 68 N.Y.2d 717 [1986]). It is surely apparent, however, that a defendant's serial failures to answer ready for trial across multiple trial dates and over extended periods of time are likely to result in some occasion on which the People are not ready, which may warrant the exclusion of speedy trial time.
The foregoing constitutes the opinion, decision, and order of the court.