Opinion
10-0611-02.
Decided January 31, 2011.
Honorable Janet DiFiore, Westchester County District Attorney, White Plains, New York, Attn: A.D.A. Diana Ameri.
Mayo Gregory Bartlett, Esq., Attorney for Defendant, White Plains, New York.
Upon considering the defendant's instant order to show cause seeking leave of the Court for the filing of a notice of alibi pursuant to Section 250.20 of the Criminal Procedure Law (CPL), the Court has considered the following papers: order to show cause and affirmation in support of counsel for the defendant, Mayo Gregory Bartlett, Esq., and the affirmation in response and memorandum of law of Assistant District Attorney Diana Ameri.
RELIEF REQUESTED
The defense has filed an order to show cause seeking leave to file an untimely notice of intent to proffer alibi evidence at trial pursuant to CPL 250.20 upon the claim that the failure to timely file same in compliance with the specific timetable set forth in CPL 250.20(1) was the product of defense counsel's inability to speak with the defendant's father and the proposed alibi witnesses for the purpose of confirming the proffered alibi defense until an unspecified date in October of 2010.
FINDINGS OF FACT
Under the instant indictment, the defendant has been charged with a single count of Murder in the second degree pursuant to Penal Law § 125.25(1), a single count of Murder in the second degree pursuant to Penal Law § 125.25(3), a single count of Burglary in the first degree pursuant to Penal Law § 140.30(1), three counts of Assault in the first degree pursuant to Penal Law § 120.10(1), two counts of Assault in the first degree pursuant to Penal Law § 120.10(4), a single count of Attempted Murder in the second degree pursuant to Penal Law §§ 110 and 125.25(1), and two counts of Criminal Possession of a Weapon in the second degree pursuant to Penal Law § 265.03(1). In support of these charges it is alleged by the People that on April 21, 2010 at approximately 7:32 P.M., the defendant and his co-defendant forcibly entered a residence located at 1159 Yonkers Avenue in the City of Yonkers and each of them fired several gunshots which struck three persons located therein, causing the death of one gunshot victim and the injury of two other gunshot victims.
On June 14, 2010, the defendant was arraigned on the instant indictment before the Westchester County Court (Colangelo, J.) in the presence of assigned counsel from the Legal Aid Society of Westchester County (LAS) and entered a plea of not guilty to all of the counts charged thereunder. The People served the defendant with a demand for a notice of alibi at that time by annexing same to the instant indictment. On June 29, 2010, defendant's assigned counsel from the LAS was relieved from further representation upon the entry of Mayo Bartlett, Esq., as retained counsel. By Decision and Order, filed and entered on December 3, 2010, the Westchester County Court (Zambelli, J.) granted the defendant's application for leave to serve and file a late alibi notice with respect to unidentified witnesses pursuant to CPL 250.20(1) . By Trial Readiness Order, dated December 7, 2010, the Westchester County Court (Zambelli, J.) transferred this matter to the Trial Assignment Part presided over by this Court for further proceedings in advance of trial.
Although defense counsel does not make reference in the instant application to the previous application he filed with the Westchester County Court (Zambelli, J.) for leave to file an untimely alibi notice, it appears from the People's Affirmation in Opposition to the instant application that the previous application pertained to individuals identified as Glenda Vaughn, Nylasia Vaughn and Stacy White.
At the direction of this Court, the defense filed the instant Order to Show Cause seeking leave to file an untimely notice of intent to proffer new alibi evidence at trial pursuant to CPL 250.20 on January 10, 2011. The People oppose the instant defense application, arguing that the defense has failed to establish good cause for the extension of the period of service of the proposed alibi notice.
This Court's review of the proposed notice of alibi which is the subject of the instant application makes reference to an individual or individuals identified as both Lindsay Taylor and Lindsay Graham, who, in either event, are distinct from the individuals identified in the previous application which was granted by the Westchester County Court (Zambelli, J.) as referenced herein.
CONCLUSIONS OF LAW
Pursuant to Criminal Procedure Law 250.20(1), the People may serve a demand upon the defense for a "notice of alibi" at any time within 20 days of the defendant's arraignment. In response thereto, the defendant must serve and file a "notice of alibi" within 8 days of the service of the People's demand, although the motion court may exercise its discretion to extend the period for service of such notice "for good cause shown" (CPL 250.20). In requesting permission to file a late notice, a defendant must proffer a reasonable excuse for the failure to timely file the notice ( People v. Caputo, 175 AD2d 290, lv. denied 78 NY2d 1126; People v. Toro, 198 AD2d 532, 533; People v. Bernard, 210 AD2d 419, lv. denied, 85 NY2d 906; People v. Bonner, 287 AD2d 728, lv. denied 97 NY2d 751).
The defendant's "notice of alibi" must set forth the place or places where the defendant claims to have been at the time in question, and the names, the residential and employment addresses, the places of employment and the addresses thereof of every such alibi witness upon whom he intends to rely" (CPL 250.20[1]).
Defense counsel's affirmation in support of the instant order to show cause provides that a notice of alibi was not served within the statutorily-prescribed time period due to defense counsel's inability to speak with the defendant's father and the proposed alibi witness(es), Lindsay Taylor and/or Lindsay Graham, for the purpose of confirming the proffered alibi defense until an unspecified date in October of 2010. Specifically, the defense indicates that the defendant's father failed to appear for several meetings scheduled by defense counsel ostensibly for the purpose of determining the viability of the proposed alibi defense with respect to the proposed alibi witness(es), Lindsay Taylor and/or Lindsay Graham. Defense counsel further relates that the defense was unable to obtain the necessary information regarding the above-referenced proposed alibi defense until sometime in October of 2010, when, counsel affirms, he "promptly contacted the witnesses in the notice and interviewed them so that the notice would be accurate." In this regard, defense counsel further affirms that he had "expeditiously taken all necessary steps to ascertain, locate and evaluate the information necessary to prepare the notice of alibi". Furthermore, the defense argues that the filing of the subject alibi notice at this stage of the pre-trial proceedings in this case will not impair the ability of the People adequately investigate the proposed alibi witness(es) in advance of trial, as the commencement of trial proceedings has not yet been scheduled by this Court.
The People forcefully oppose the instant application due to the failure of the defense to make a showing of good cause which explains their omission of the individual(s) named in the proffered notice of alibi, Lindsay Taylor and/or Lindsay Graham, from their previous application for leave to file an untimely notice of alibi before the Westchester County Court (Zambelli, J.) which was addressed by the Decision and Order of that Court, filed and entered on December 3, 2010, which granted the defendant's leave application.
Here, the Court is troubled by the fact that the proffered showing of good cause by the defense for the instant application fails to relate in any way to the additional delay occasioned by the defense beyond the filing of the previous application for leave to file a late alibi before the Westchester County Court. As the defense has failed to support the instant application with any showing of good cause for the additional delay occasioned between the filing of the previous application and the instant application, the Court finds that it would be a reasonable exercise of discretion to preclude the defense from filing the instant application for leave to file the proffered notice of alibi regarding Lindsay Taylor and/or Lindsay Graham ( see, People v Reyes , 49 AD3d 565 , app. denied 10 NY3d 869; People v Morgan , 48 AD3d 703, lv. denied 10 NY3d 962; People v Louisias , 29 AD3d 1017 , lv. denied 7 NY3d 814; People v Tucker, 21 AD3d 565, lv. denied 5 NY3d 833; People v Delacruz , 13 AD3d 642 , lv. denied 4 NY3d 830; People v Bonner, 287 AD2d 728). However, as the People do not allege that they would be prejudiced in any meaningful sense by the Court's acceptance of the defendant's filing of the untimely notice of alibi regarding Lindsay Taylor and/or Lindsay Graham, the instant application seeking to permit the defense to file the subject alibi notice is granted in the interest of justice.
Based upon the foregoing, the defendant's motion seeking leave to file an untimely notice of intent to proffer the proposed alibi evidence concerning the witness(es) identified as Linday Taylor and/or Lindsay Graham is granted in the absence of a showing of resulting prejudice by the People for the failure of the defense to comply with the notice requirements of CPL 250.20.
The foregoing shall constitute the Decision and Order of the Court.