Opinion
2426/01.
Decided June 23, 2005.
The defendant was arrested on April 26, 2001, more than four years ago, and charged with, inter alia, four counts of attempted murder in the second degree (Penal Law § 110/125.25(1)), and one count each of reckless endangerment in the first degree (Penal Law § 120.25), and criminal possession of a weapon in the second degree (Penal Law § 265.02). On April 20, 2005, the defendant moved to dismiss the case pursuant to CPL § 30.30(1), arguing that the statutory time allotted to the People to bring the case to trial has expired. Defendant also asks the Court to dismiss the case pursuant to CPL § 30.20, arguing that the failure of the People to bring the case to trial to date violates his Constitutional right to a speedy trial. The main issue is whether the period between January 2, 2003 and the filing of the current motion should be excluded from CPL § 30.30(1) calculations due to "exceptional circumstances" resulting from the fact that the arresting officer, Police Officer William Gallagher, has been on active military duty in either Iraq or Afghanistan during this entire period. The Court finds that the period between January 2, 2003 and April 20, 2005 is excluded from CPL § 30.30(1) calculations as an "exceptional circumstance" pursuant to CPL § 30.30(4)(g). Moreover, the defendant's motion to dismiss is denied in its entirety.
In order to prevail on a ruling to exclude a period of time from trial readiness calculations on a claim that "exceptional circumstances" are present, the People are required to establish that evidence "material" to their case is presently unavailable, and that they have "exercised due diligence to obtain such evidence." In addition, the court must have "reasonable grounds to believe that such evidence will become available in a reasonable period." CPL § 30.30(4)(g)(i); See People v. Anderson, 66 NY2d 529, 538 (1985). In this case, the Court finds that the statutory criteria have been met.
At the outset, the People are clearly entitled to rely on the fact that a witness's unavailability due to being overseas on active military duty in time of war constitutes an "exceptional circumstance." See e.g. People v. Williams, 293 AD2d 557 (2nd Dept. 2002); People v. Benjamin Lawton, N.Y.L.J., November 22, 1991 (Sup.Ct. New York County). In this case, the People have alleged that Officer Gallagher is a member of the military who has been overseas during the entire period at issue. While the defendant refers to the officer's unavailability as being due to the fact that he "allegedly has been in military service to date," there is no reason advanced for the Court not to accept the People's representation in this case. See People v. Celestino, 201 AD2d 91, 95 (1st Dept. 1994). Accordingly, the People would be allowed to rely on CPL § 30.30(4)(g) to exclude the time, as long as the other statutory criteria are met.
The defendant's main claim is that Officer Gallagher is not the only witness who can offer "material" evidence in this case because he argues that Officer Gallagher's partner, Officer De La Cruz, is available to testify at trial. The People respond that Officer Gallagher's testimony is indispensable to their case. Thus, the first issue to be determined is whether Officer Gallagher's testimony constitutes "material" evidence. Evidence that is "probative of a fact in issue" is considered to be "material." Richardson on Evidence, § 4-102 (11th Edition 1995); see Matter of Christina NN, 98 AD2d 894, 896 (3rd Dept. 1983). Plainly, then, a determination of whether a presently unavailable witness possesses "material" evidence must be assessed on a case by case basis. Neither a blanket statement by the People that the presently unavailable evidence is "material," nor a blanket allegation by the defense that the missing evidence is not "material" to the People's case, will be sufficient to decide the issue. Rather, a court must examine all the relevant facts and circumstances in each particular case to determine whether such evidence is "material."
The defendant is accused of attempting to kill four separate individuals on April 25, 2001 by shooting at them with a loaded gun He is also accused of being found in possession of a loaded and operable Baretta pistol later on that same day. Ballistics evidence from the scene of the shooting is alleged to be consistent with rounds of ammunition test fired from the gun recovered. The People rely on Officer Gallagher's testimony at a pretrial suppression hearing held on June 6, 2002 to support their claim that his trial testimony would consist of evidence "material" to their case. That hearing was ordered to determine whether oral statements made by the defendant, the Baretta pistol recovered from an area alleged to be under the defendant's dominion and control, and evidence of four pretrial identification procedures made by the purported attempted murder victims, should be admitted at trial.
The Court has reviewed the minutes of that hearing as well as the written findings of fact and conclusions of law made by the judge who presided at it. Officer Gallagher was the only witness called at the hearing. He testified that defendant made a statement directly to him as he was placing the defendant in handcuffs, indicating that the defendant had been somewhere other than the scene of the shooting at the time of the shooting. Moreover, the defendant gave Officer Gallagher pedigree information indicating that he lived at 16 East 205th Street, Apartment 4. And while seated in the patrol car, the defendant made additional statements to Officer Gallagher in which he expressed his opinion about the identity of the perpetrator of the crimes charged. In addition, Officer Gallagher also testified that he spoke directly with the four separate individuals who the defendant allegedly shot at and elicited descriptions of the shooter. He further testified that he conducted a canvass of the neighborhood with one of the complaining witnesses seated in the patrol car and the other three following behind in another car, and was present when all four individuals identified defendant. Finally, Officer Gallagher obtained a warrant to search the apartment defendant indicated he resided in, and recovered, inter alia, the loaded 9mm Baretta firearm from behind a plastic garbage container, and mail addressed to defendant at that location. He vouchered all of the physical evidence recovered, and made extensive notes about where he recovered each item.
By any definition, Officer Gallagher's testimony at trial would be "material" to the People's case. That testimony would presumably track his hearing testimony and therefore involve recovery of physical evidence allegedly linked to the defendant and the shootings, identifications made by the purported victims of the crime, and defendant's statements. Defendant's claim that Officer De La Paz can offer identical testimony to Officer Gallagher, is simply not supported by the record before the court. It appears that Officer De La Paz was Officer Gallagher's partner, and was present in the patrol car when the four complaining witnesses first approached, and during the canvass. There is no indication about how many, if any, of the defendant's statements were overheard by Officer De La Paz, or whether he personally witnessed Officer Gallagher recover the gun or other evidence during the execution of the search warrant. In addition, since Officer De La Paz did not voucher the gun, he certainly could not be expected to give testimony relating to chain of custody of what even the defense concedes is evidence crucial to the prosecution's case.
However, even if Officer De La Paz or perhaps other police officers were able to testify to some of the same things that Officer Gallagher would be able to, that fact would not make Officer Gallagher's testimony any less "material" in this case for the purposes of CPL § 30.30(4)(g) analysis. The defendant's claim is that if there is a witness who can offer similar, or what would be characterized as "cumulative," testimony to a witness who is presently unavailable to testify due to "exceptional circumstances," then the People are not entitled to rely on CPL § 30.30(4)(g) at all. The assessment of whether evidence is "material" in a case is different from an assessment of whether the evidence would be "non-cumulative." See People v. Kitching, 78 NY2d 532, 536-37(1991); People v. Williams, 294 AD2d 133 (2nd Dept. 2002). The legislature has not required that a court assess whether "material" evidence is also "non-cumulative" in order to determine whether the current unavailability of evidence can result in excluding a period of time from CPL § 30.30(1) calculations due to the existence of an "exceptional circumstance." In this case, the evidence to be offered at trial by Officer Gallagher is so obviously "material," and the People are entitled to receive the benefit of the exclusion under CPL § 30.30(4)(g) even if some other witnesses could provide similar testimony. But see People v. Leopold Brown, N.Y.L.J., March 24, 1992, p. 21 (Sup.Ct. Kings County) (People failed to establish that testimony of arresting officer's partner, who was overseas on military service during Gulf War, was "material").
The People have also exercised all the diligence they can in this case to obtain Officer Gallagher's testimony. This Officer is, after all, part of the armed forces and is fighting a war overseas. The People have never been able to pinpoint the Officer's exact whereabouts other than to say he is either in Iraq or Afghanistan because the United States government is not sharing that information with the New York City Police Department. And the government is also not sharing information about when the officer will be returning to the United States. This is a situation where the witness's availability is completely out of the People's control, and "no amount of diligence" can make Officer Gallagher return any earlier. See People v. Harden, 6 AD2d 181, 182 (1st Dept. 2004); People v. Mack, 300 AD2d 254, 255 (1st Dept. 2002) (material witness unavailable for 18 months for medical reasons).
Finally, this Court has no reason to believe that Officer Gallagher will not be available to testify at a trial in a "reasonable period" of time. The Court is certainly mindful that 28 months have already passed since Officer Gallagher was placed on active military duty and sent overseas, and that this is already a lengthy period to exclude from CPL § 30.30(1) calculations. Nonetheless, the question of what a "reasonable period" is for an adjournment under this exception must be based on the type of "exceptional circumstance" involved. See e.g. People v. Womack, 229 AD2d 304 (1st Dept 1996) (43 day period for arresting officer's maternity leave is reasonable); People v. Fuller, 8 A.D.3rd 204 (1st Dept. 2004) ("delay occasioned by exceptional circumstances of the World Trade Center attacks and the resulting unavailability of police witnesses" reasonable); People v. Benjamin Lawton; People v. Mack. There is no indication from the police department that the defendant will not be returning to his job once his military service is over. Since there is no reason to believe that Officer Gallagher is a career member of the military, he will be returning to the United States and civilian life at some point. At this moment, that time has not yet come; but, given the reason for his being unavailable, the time that has passed is not an unreasonable period to exclude from CPL § 30.30(1) calculations. Cf. People v. Spadafora, 131 AD2d 40, 45 (1st Dept. 1987).
In determining the merits of the rest of the CPL § 30.30(1) application, the Court finds 61 days charged to the People prior to Officer Gallagher's being sent overseas. The People are charged the four days between his arraignment on April 26, 2001 and the next court date, which was April 30, 2001. The period between April 30, 2001 and May 10, 2001 is excluded because the defendant requested the adjournments during that period. The period between May 10, 2001 and May 24, 2001, a total of 14 days, is charged to the People because the defendant had not been arraigned on the indictment. The People in fact stated ready for trial on May 24, 2001. The defendant does not claim that the period between May 24, 2001 and November 25, 2002 should be charged to the People. However, the People concede that the period between April 15, 2002 and May 7, 2002, a total of 21 days, should be charged to them because they were not ready for trial and requested that entire adjournment period. In addition, the People concede that they were not ready for trial on May 7, 2002 and requested a 13 day adjournment. The Court is charging the People with the 34 days conceded. On November 25, 2002, the People were not ready for trial and requested a 7 day adjournment. This 7 day period is charged to them. No other time is charged to the People since November 25, 2002. Accordingly, defendant's motion to dismiss the indictment pursuant to CPL § 30.30(1) is denied.
Defendant's alternative request to dismiss the indictment pursuant to CPL § 30.20 is also denied. The defendant posted bail in November, 2001 and has not been in custody since that time. The Court has fully reviewed all the factors required by People v. Taranovich, 37 NY2d 442 (1974) and finds no violation of the defendant's Constitutional right to a speedy trial.
The foregoing constitutes the decision and order of the Court.