Opinion
No. 2014NY078074.
09-09-2015
The PEOPLE of the State of New York v. Timothy HARRIS, Defendant.
ADA Konstantin Yelisavetskiy, District Attorney's Office, New York. Will Kendall, Neighborhood Defender Service of Harlem, New York.
ADA Konstantin Yelisavetskiy, District Attorney's Office, New York.
Will Kendall, Neighborhood Defender Service of Harlem, New York.
LISA A. SOKOLOFF, J.
Defendant TIMOTHY HARRIS moves for dismissal of the accusatory instrument charging him with Resisting Arrest, Penal Law (PL) § 205.30, Criminal Possession of Marijuana in the Fifth Degree (PL § 221.10[1] ), Unlawful Possession of Marijuana, (PL § 221.05) and Disorderly Conduct, (PL § 240.20[3] ), on the ground that he has been denied his right to a speedy trial pursuant to Criminal Procedure Law (CPL) §§ 210.20(1) and 30.30(1)(b). For the reasons that follow, Defendant's motion to dismiss is GRANTED.
Since Defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony, the People are required to be ready for trial within ninety (90) days from the commencement of the criminal action, less any excludable time (CPL § 30.30(1)(b) ; People v. Worley, 66 N.Y.2d 523 [1985] ).
The People are considered to be ready for trial when they 1) communicate their actual readiness in open court or file a certificate of actual readiness with the court and serve a copy on the defense counsel and 2) are in fact ready to proceed at the time they declare readiness (People v. Kendzia, 64 N.Y.2d 331 [1985] ).
A defendant seeking a speedy trial dismissal pursuant to CPL 30.30 meets his or her initial burden on the motion simply "by alleging only that the prosecution failed to declare readiness within the statutorily prescribed time period" (People v. Luperon, 85 N.Y.2d 71, 77–78 [1995] ).
Once the defendant has alleged a delay of more than this allowable time, the People have the burden of demonstrating their entitlement to a statutory exclusion for some, if not all, of the period of delay at issue (People v. Cortes, 80 N.Y.2d 201 [1992] ).
Having reviewed the parties' submissions, there is primarily one adjournment period in dispute. The Court will address each adjournment period, but agrees with Defendant's assessment that the period during which an officer was unavailable is chargeable to the People.
1. October 14, 2014—January 12, 2015 (0 days charged)
On October 14, 2014, Defendant was arraigned on a misdemeanor complaint and the case was adjourned until January 12, 2015 for motion practice. This period is excludable under CPL § 30.30(4)(a) as an adjournment for the purpose of defense motions (Worley, 66 N.Y.2d at 525 ; People v. Campos, 124 AD3d 434 [1st Dept 2015] ).
2. January 12, 2015—February 23, 2015 (0 days charged)
On January 12, 2015, Defendant's motion was decided and the matter was adjourned for hearings and trial. After a decision is rendered on a defendant's motion, the People are entitled to a reasonable period of time to prepare for hearings or trial (People v. Reed, 19 AD3d 312 [1st Dept 2005] ).
3. February 23, 2015—April 1, 2015 (37 days charged)
On February 23, 2015, the People answered not ready for trial and the matter was adjourned for hearings and trial. The entire adjournment is chargeable to the People.
4. April 1, 2015—May 5, 2015 (8 days charged)
On April 1, 2015, the People again answered not ready for trial and the case was again adjourned to May 5, 2015 for hearings and trial. In the interim, the prosecution filed a Certificate of Readiness off-calendar on April 9, 2015.
The certificate of readiness "serves to toll the speedy trial clock' from running for the remainder of the adjournment period" (People v. Stirrup, 91 N.Y.2d 434, 439–440 [1998] ). Accordingly, the eight-day period from April 1 to April 9, 2015 is charged to the People.
5. May 5, 2015—July 8, 2015 (64 days charged)
On May 5, 2015, the prosecution again answered not ready. They announced on the record that the arresting officer was out because of a line-of-duty injury with no expected return date. The prosecution now contends that this delay should be excluded as an exceptional circumstance, although they provided no information about the injury or whether it prevented the officer from coming to court for the entirety of the adjournment. Nor did they provide information about whether the officer was an essential witness, without whom they could not go forward.
Although there is no precise definition of what constitutes an exceptional circumstance under CPL 30.30(4)(g), the Court of Appeals has repeatedly emphasized that the People may not rely on factors which do not actually prevent them from being ready to proceed (People v. Smietana, 98 N.Y.2d 336 [2002] ).
The arresting officer is generally a material prosecution witness in a criminal action, and his or her unavailability for medical reasons has been held to constitute an exceptional circumstance warranting the exclusion of the period of delay during which the officer is medically unable to testify (People v. Martinez, 268 A.D.2d 354 (1st Dept.2000), lv denied 94 N.Y.2d 922 (2000) ; People v. Hernandez, 268 A.D.2d 344 (1st Dept 2000), lv denied 95 N.Y.2d 853 (2000) ; People v. Pabon, 46 Misc.3d 152(A) [App Term, 1st Dept 2015] ; People v. Taylor, 2001 WL 1682457 [App Term, 1st Dept 2001] ; People v. Luperon, 196 Misc.2d 154 [Crim Ct N.Y. Co 2003] ).
Under CPL § 30.30(4)(g), it is the People's burden to show (i) the unavailability of a material witness (ii) due diligence in making that witness available and (iii) a reasonable expectation of the witness's future availability (see People v. Zirpola, 57 N.Y.2d 706 [1982] ; People v. Price, 61 AD3d 127 [2nd Dept 2009] ; People v. Spadafora, 131 A.D.2d 40 [1st Dept 1987] ; People v. Braithwaite, 28 Misc.3d 1224(A) (Crim Ct, Kings Co 2010] ). Moreover, the statutory "unavailable evidence" example of "exceptional circumstances" manifests a clear indication of a legislative intent that a delay will not be considered reasonable unless a probable date of witness availability, supported by a factual basis, can be projected (People v. Spadafora, at 46).
Here, the only information provided to the court was that the arresting officer was unavailable due to a line-of-duty injury with no expected return date. It is not clear whether the officer was hospitalized or nursing a sprained wrist. Furthermore, the People's affirmation in response to Defendant's motion is devoid of any showing that the People exercised due diligence to make the officer available, as required by the statute.
To support their contention that the unavailability of the officer, for medical reasons, is a sufficient exceptional circumstance to warrant the exclusion of the period of delay, the People cite People v. Goodman (41 N.Y.2d 888 [1977] ). But the Goodman case relies on People v. Gordon (47 A.D.2d 775 [3rd Dept 1975] ) where the prosecution had produced an affidavit of a doctor certifying that the material witness was hospitalized. The People also cite People v. Pomales (159 A.D.2d 451 [1st Dept 1990] ) in which a complaining witness underwent surgery and chemotherapy for throat cancer and then recuperated in Florida.
It is true that the People are not required, in order to invoke the statutory exemption, to show that the witness is hospitalized, completely immobile or totally incapacitated, but they must offer some medical evidence to substantiate their claim of the officer's unavailability due to a legitimate medical reason (People v. Martinez, 268 A.D.2d 354 [1st Dept 2000] ).
A witness' medical condition can be a basis of excludable time where the medical condition is "a sufficiently restricting injury to qualify the People's witness as medically unable to testify" (People v. Celestino, 201 A.D.2d 91 [1st Dept 1994]. Unavailability of a principal witness for orthopedic injuries can fall within the exclusion of CPL § 30.30(4)(g) (People v. Goodman, 41 N.Y.2d 888 [1994] ). For example, a large cumbersome cast in which an officer's right arm was encased, constituted a sufficiently restricting injury to qualify the People's witness as medically unable to testify (People v. McLeod, 281 A.D.2d 325 [1st Dept 2001] ). Likewise, exceptional circumstances existed where an officer broke her ankle and could not walk (People v. Hernandez, 268 A.D.2d 344 [1st Dept 2000] ) and where a detective broke his leg (People v. Celestino, supra ). Where a restrictive condition exists, case law requires documentation of the injuries by adequate medical records (People v. Pharr, 204 A.D.2d 126 [1st Dept 1994] ).
Although the People's representations are generally sufficient to establish a witness' unavailability due to medical reasons (People v. Alcequier, 15 AD3d 162 [1st Dept 2005] (in absence of transcript, prosecutor's unrefuted affirmation provided sufficient record of reason for adjournment), those representations should nonetheless establish the basis for the witnesses inability to testify. In Hernandez, for example, the People represented to the court that the officer had broken her ankle and could not walk, even with crutches (Hernandez, 268 A.D.2d 344–345 ).
Where there is a factual dispute, the People bear the burden of demonstrating that the witness is unavailable within the meaning of CPL § 30.30(4)(g) ( People v. Zirpola, 57 N.Y.2d 706 [1982] ; People v. Martinez, 268 A.D.2d 354 [1st Dept 2000] ). Moreover, the People are required to ensure a sufficiently clear record of the proceeding to permit the Court to make an informed decision as to whether the People should be charged the time between the appearance date and the adjourned date (People v. Cortes, 80 N.Y.2d at 215 ).
This Court finds that the People have failed to meet their burden as their submissions are insufficient to establish Officer Vargas's unavailability for the contested time period from May 5 to July 8, 2015. It is therefore chargeable to the People.
6. July 8, 2015—August 12, 2015 (5 days charged)
The People were not ready for hearings and trial and requested five days, until July 13, 2015. When the court grants the prosecution a post-readiness adjournment beyond that requested, for the convenience of the court's calendar, the People will be charged only with the actual period of adjournment requested (People ex rel. Sykes [Rodriguez] v. Mitchell, 184 A.D.2d 466, 468 [1st Dept 1992] ); People v. Urraea, 214 A.D.2d 378 (1st Dept 1995).
7. August 12, 2015—October 9, 2015 (0 days charged)
On August 12, 2015, defense counsel served and filed the instant motion.
Total Days Chargeable to the People: 114 Days
In total, the People are charged with 114 days, which exceeds the 90 days afforded by CPL § 30.30(1)(b). Accordingly, Defendant TIMOTHY HARRIS's motion to dismiss the accusatory instrument for lack of a speedy trial is granted.
This opinion constitutes the decision and order of the court. A copy of the decision will be mailed to the parties and placed in the court file.