Opinion
2017BX
09-28-2018
The PEOPLE of the State of New York, Plaintiff, v. S.F., Defendant.
ADA Alana Brady, Office of the Bronx County District Attorney Mr. Oded Oren, Esq., The Bronx Defenders
ADA Alana Brady, Office of the Bronx County District Attorney
Mr. Oded Oren, Esq., The Bronx Defenders
Steven Hornstein, J. The defendant has been charged by information with operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law ("VTL") §§ 1192 [1 ] and [3] ). By motion, filed June 13, 2018, the defendant seeks dismissal of the information on speedy trial grounds pursuant to Criminal Procedure Law ("CPL") § 30.30. By affirmation, filed on or about July 6, 2018, the People oppose the defendant's motion. Both parties have also submitted additional written arguments.
The Court, having reviewed the defendant's moving papers, the People's responses, the court file and relevant proceedings minutes, finds as follows: DISMISSAL — SPEEDY TRIAL VIOLATION
To establish a violation under CPL 30.30 a defendant must demonstrate the existence of a delay in excess of the statutory time period ( People v. Santos , 68 N.Y.2d 859, 861, 508 N.Y.S.2d 411, 501 N.E.2d 19 [1986] ). Upon meeting this burden, the burden shifts to the People to establish that certain periods within that time period should be excluded (see People v. Fields , 214 A.D.2d 332, 625 N.Y.S.2d 483 [1st Dept. 1995] ). The People also bear the burden of clarifying, on the record, the basis for an adjournment so that a motion court can determine to whom an adjournment should be charged ( People v. Cortes , 80 N.Y.2d 201, 215, 216, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992] ; see also People v. Liotta , 79 N.Y.2d 841, 580 N.Y.S.2d 184, 588 N.E.2d 82 [1992] ; People v. Berkowitz , 50 N.Y.2d 333, 428 N.Y.S.2d 927, 406 N.E.2d 783 [1980] ).
Where, as here, the highest count in an accusatory instrument is an unclassified misdemeanor punishable by a sentence of imprisonment of more than three months, the prosecution must be ready for trial within ninety days (see CPL 30.30 [1 ] [b]; see also VTL 1193 [1 ] [b] [i] ). The ninety days commence with the filing of the first accusatory instrument (see CPL 1.20 [17 ]; see also People v. Stirrup , 91 N.Y.2d 434, 438, 671 N.Y.S.2d 433, 694 N.E.2d 434 (1998).
Where, as here, the defendant meets his initial burden of establishing that the People have exceeded the ninety days statutory time period, the burden shifts to the People to prove that certain periods of time should be excluded in computing the time within which they must be ready for trial (see People v. Goss , 87 N.Y.2d 792, 795, 642 N.Y.S.2d 607, 665 N.E.2d 177 [1996] ).
On September 13, 2017, the People answered not ready and informed the court that Officer Christopher Ventura, a purported necessary witness, was unavailable due to his deployment. The People maintain that this period is excludable as an "exceptional circumstance" pursuant to CPL § 30.30 (4) (g). The Court instructed the People to file a statement of readiness and wrote, on the court action sheet: "No decision regarding excludable adjournment at this time." The matter was then adjourned to October 25, 2017.
The defendant notes, as to this adjournment, as well as every adjournment through April 19, 2018, that the People are seeking an "exceptional circumstance" exclusion based upon Officer Ventrua's deployment. See Defendant's Motion to Dismiss at 9. The defendant, citing People v. Blakley , 34 N.Y.2d 311, 357 N.Y.S.2d 459, 313 N.E.2d 763 (1974), argues that whether military service should be excluded as an "exceptional circumstance" "depends on the relevant facts of the military service." In Blakley , the People argued, inter alia , that they were not ready for trial due to the entry of a necessary witness into the military. The Court, noting that the witness entered the military one year after the commencement of the case; that he remained in the States for nearly eight months before his deployment overseas; that prior to his deployment, he advised the District Attorney's office that he would be available during a thirty day leave; that the District Attorney's office, notwithstanding his commander's willingness to make him available if he were not involved in a "critical position," made no effort to obtain his presence while overseas, and that the District Attorney's office could reach him through his brother, held:
A missing witness is a valid reason for justifying delay (citations omitted), but it is doubtful that the absence of the witness... justifies delay in this case...[the witness] kept in touch with the District Attorney's office through periodic visits and informed it that he could be contacted through his brother...Though the witness was in the United States for 18 months following the indictment, apparently willing, and even anxious, to appear at trial, the District Attorney's office made no attempt to utilize him during this period...
...We conclude that good cause for the delay has not been established....
Criminal Procedure Law ("CPL") § 30.30 (4) (g) provides, in pertinent part:
In computing the time within which the People must be ready for trial...the following periods must be excluded: (g) other periods of delay occasioned by exceptional circumstances, including if the 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."
To qualify as an exceptional circumstance exclusion, the People must establish that:(1) material evidence is unavailable due to an "exceptional circumstance"; (2) the People have exercised due diligence to obtain the material evidence; and (3) such evidence may be available within a reasonable period of time. See People v. Anderson , 66 N.Y.2d 529, 498 N.Y.S.2d 119, 488 N.E.2d 1231 (1985) ; People v. Zirpola , 57 N.Y.2d 706, 454 N.Y.S.2d 702, 440 N.E.2d 787 (1982).
The unavailability of material evidence due to a necessary witness' active military duty, may constitute an "exceptional circumstance" (see People v. Thompson , 118 A.D.3d 922, 988 N.Y.S.2d 209 [2d Dept. 2014] ; People v. Clark , 39 Misc.3d 127 [A], 971 N.Y.S.2d 73 [App. Term, 2d Dept. 2013] ) People v. Chardon , 83 A.D.3d 954, 922 N.Y.S.2d 127 (2d Dept. 2011). "To determine whether evidence is ‘material,’ a court must examine all the relevant facts and circumstances of the particular case." See People v. Veras , 48 Misc.3d 1227 (A), 26 N.Y.S.3d 215 (Crim. Ct, Bronx County 2015) ; People v. Rodriguez , 8 Misc 3d 1013(A), 801 N.Y.S.2d 780 (Sup. Ct., Bronx County 2005). Here, the People maintain that Police Officer Ventura's testimony is "material" in that he, in his capacity of the arresting officer, made observations of the defendant's physical condition which were indicative of intoxication and that the defendant, while in an ambulance with the officer, admitted to an essential element of operating a motor vehicle while intoxicated, to wit: "I was driving." The People further assert that Officer Ventura's partner, Officer Dowling, had been interviewed and that he was not in the ambulance at the time of the defendant's incriminating statement. Accordingly, the People submit that this statement cannot be proven through any means other than the testimony of Officer Ventura. See People's Affirmation at 11.
The defendant, in his reply, contends that "[t]he Prosecution could have replaced Officer Ventura's testimony as to the indicia and statement with testimony by the ambulance staff" and "it is unclear from the Prosecution's allegation of facts that the partner officer was not present to observe the indicia..." and, therefore, the People have "failed to sufficiently allege that Officer Ventura is material to the case." Defendant's reply at 5. Notwithstanding the defendant's speculative assertion that other witnesses might have made similar observations or overheard the defendant's admission, the Court finds Officer Ventura is a necessary witness who possesses material evidence. See People v. Rodriguez , 8 Misc 3d 1013(A), 801 N.Y.S.2d 780 (Sup. Ct., Bronx County 2005) ("the people are entitled to receive the benefit of the exclusion under CPL § 330.30 (4) (g) even if some other witnesses could provide similar testimony.")
The People, in their Affirmation, also provided several documents related to Officer Ventura's deployment. Exhibit 1, an undated letter from the Department of the Army, "ordered Officer Ventura to Active Duty as a member of [his] Reserve Component Unit" and directed him to report for duty on February 3, 2017. Exhibit 3, a letter from the NYPD's Military and Extended Leave Desk, dated December 14, 2017, provided, in pertinent part: "Police Officer...Ventura...is currently...on a Military Leave of Absence from the New York City Police Department...Officer Ventura was deployed on February 3, 2017 and his tentative military discharge date is March 8, 2018..." Exhibit 4, a certificate of discharge from active duty, provided in pertinent part, that Officer Ventura served in Kuwait from March 28, 2017 until April 28, 2017, in Afghanistan from April 28, 2017 until June 29, 2017, and then again in Kuwait from June 29, 2017 until December 24, 2017. The certificate further indicated that Officer Ventura was honorably released from active duty on January 3, 2018.
Based on the documentary evidence submitted by the People, the Court finds this adjournment excludable as a CPL § 30.30 (4) (g) exception. See People v. Williams , 293 A.D.2d 557, 739 N.Y.S.2d 846 (2d Dept. 2002).
On October 25, 2017, the People informed the court that Officer Ventura was still on active military duty and that he was expected to return on or about April of 2018. The People asserted that the adjournment was excludable as an "exceptional circumstance," the defendant objected to the People's assertion and the court, without determining whether the period was excludable, adjourned the matter to December 19, 2017 for hearing and trial.
The documents provided by the People confirmed that Officer Ventura was stationed in Kuwait on October 25, 2017 through December 24, 2017. Accordingly, the adjournment is excludable pursuant to CPL § 30.30 (4) (g).
On December 19, 2017, the People informed the court that Officer Ventura was still on active duty and that he was expected to return in March of 2018. The People, again over the defendant's objection, claimed that this time period was excludable and the case was adjourned to February 8, 2018, for hearing and trial.
As stated, the records provided by the People confirm that Officer Ventura was still stationed in Kuwait on December 19, 2017 and that he remained on "active duty" until January 3, 2018. Accordingly, this discrete fifteen day period is excluded as an exceptional circumstance under CPL § 30.30 (4) (g). While Officer Ventura's "active duty" status concluded on January 3, 2018, the People have represented that his military service continued until March 3, 2018. As to whether the period from January 4, 2018 to February 8, 2018 is excludable as an "exceptional circumstance," the Court requires additional information related to the officer's whereabouts, his availability and the People's efforts to secure his presence during this time span. See People v. Clark , 39 Misc 3d 127(A), 971 N.Y.S.2d 73 (App. Term, 2d Dept. 2013) ("...the District Court properly denied defendant's initial CPL 30.30 motion inasmuch as it was uncontroverted that the police officer witness was on active military duty out of state during the relevant time period..."). Accordingly, a hearing is required to determine the facts necessary to determine whether the thirty-five (35) day period from January 4, 2018 to February 8, 2018 is includable.
On February 8, 2018, the People, once again, informed the court that they were not ready for trial due to Officer Ventura's deployment and requested an exceptional circumstance exclusion. No determination as to whether this period was excludable was entered on the court action sheet; the People were directed to file a statement of readiness when ready and the matter was adjourned to April 19, 2018, for hearing and trial.
A determination as to whether the thirty-one (31) day period from February 8, 2018 to March 3, 2018 is excludable as an "exceptional circumstance," requires, as in the preceding adjournment, a fact-finding hearing to determine whether an exclusion is warranted. Id.
As to the forty-six (46) day post-discharge period of March 4, 2018 to April 19, 2018, the People seek an exclusion under the Uniformed Services Employment and Reemployment Rights Act (hereinafter "USERRA"). See 38 USCA § 4312. The People, as evidenced by the previously referenced December 14, 2017 Extended Leave Desk letter, were advised that Officer Ventura, following his anticipated March 3, 2018 discharge, was entitled to 90 days of reemployment rights under the Act. Section 4312 (a) provides, in pertinent part:
...any person whose absence from a position of employment is necessitated by reason of service in the uniformed service shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter...
Section 4312 (e) (1) (d) provides, in pertinent part:
...a person referred to in subsection (a) shall, upon
the completion of a period of service in the uniformed services, notify the employer referred to in such subsection of the person's intent to return to a position of employment with such employer as follows: (D) In the case of a person whose period of service in the uniformed services was more than 180 days, by submitting an application for reemployment with the employer not later than 90 days after the completion of the period of service.
The People contend that the ninety (90) day re-employment period following an "officer's discharge from active military duty and his return to his status as a New York City Police Officer [is] excludable." People's Addendum at 1. In support of this position the People cite People v. Chardon , 9 Misc.3d 1124(A), 862 N.Y.S.2d 809 (Sup. Ct, Kings County 2005), modified on other grounds 83 A.D.3d 954, 922 N.Y.S.2d 127 (2d Dept. 2018), lv denied 18 N.Y.3d 857, 938 N.Y.S.2d 865, 962 N.E.2d 290 [2011] ).
Although Chardon did not address the applicability of USERRA to speedy trial analysis, the Court did consider whether the People were entitled to an exceptional circumstance exclusion for the time that during which a complainant was deployed to Korea and for the time following his return to the United States. With respect to the five or so months the complainant was deployed, the lower court ruled that all the time, except for a one month period during which the People exercised due diligence in attempting to ascertain the witness's availability, was chargeable. With respect to the period between the time the complainant left Korea and the date he was ordered to report to Fort Knox, Kentucky:
[I]t would be unrealistic to require that the People have arranged for the complaining witness to testify during this 34-day period.
First, the People were not informed that the complainant was leaving Korea until the day before...Second, the complainant, after a year in Korea, apparently did not wish to spend his time in Brooklyn...the complaining witness went to South Carolina during this period before reporting to Fort Knox. After being in Korea for almost a year...the...witness's
desire to spend his leave time as he wished is entitled to some judicial deference as an ‘exceptional circumstance’ ...given
the fact that the complaining witness would be available within a reasonable period following his arrival at Fort Knox. Under the circumstances, this period should be excluded where the alternative may have been to arrest the complainant...pursuant to an inter-state material witness order...
Finally, if the...witness did not wish to go to New York to testify during this period, the People would be entitled to some reasonable time...to locate him in the United States and use legal process to bring him to New York....Id . at *6.
On appeal, with respect to the time period the complaining witness was stationed in Korea, the Second Department reversed the motion court and ruled:
[These periods] were attributable to exceptional circumstances and, therefore, excludable pursuant to CPL 30.30 (4)(g), since the complainant was deployed for military service in Korea (citations omitted). Finally, the People established that the period of time between July 21, 2005 and August 23, 2005, was excludable based on their diligent efforts to make the complainant available (citations omitted)....
As to the time period following the complainant's departure from Korea, the Appellate Court excluded the time period during which they found the People had exercised due diligence. Specifically, this period included the periods during which the People sent a letter to the Judge Advocate staff at Fort Knox seeking the witness' appearance; the People advised the court that the complainant did not wish to return voluntarily and that a material witness order would be required; the complainant's decision, presumably after learning a material witness order would be issued, to return voluntarily within seventy-two hours and the People's filing of a statement of readiness. Notably, the exclusion did not include the two week period between the witness' departure from Korea and the dispatch of the People's letter to the Judge Advocate staff — a period which the motion court had excluded because "it would be unrealistic to require that the People [to] have arranged for the complaining witness to testify during this...period" and because the complainant's "desire to spend his time as he wished is entitled to some judicial deference..." Id.
The fair import of the Appellate Court's decision in Chardon is that the period during which a witness possessing material evidence is deployed overseas is excludable and that the period during which that witness is in the United States, absent prosecutorial due diligence in securing that witness' presence, may be includable. This Court, in accordance with Chardon , finds that USERRA — while it serves the salutary purpose of "protect[ing] individuals performing, or who performed, uniformed service from adverse employment discrimination on the basis of their uniformed service, and provides for their prompt restoration to civilian employment when they return to civilian life" (38 USC § 3601) — does not relieve the prosecution from their obligation to afford an accused his Constitutional ( US Const amend VI ) and New York State statutory ( CPL § 30.30 ; NY Civ Rights Law § 12 ) rights to a speedy trial. Thus, the People are required to establish that they exercised due diligence in securing Officer Ventura's presence upon his return to the United States. See People v. Zirpola , 57 N.Y.2d 706, 454 N.Y.S.2d 702, 440 N.E.2d 787 (1982) ("The unavailability of a prosecution witness may be a sufficient justification for delay (citations omitted) provided that the People attempted with due diligence to make that witness available.").
The People contend that they exercised due diligence in trying to secure Officer Ventura during the period following his military discharge on March 3, 2018. They state that they tried to reach him multiple times at a cell phone number that he possessed when the case was written up, but that he had discarded that phone after his deployment; that they tried to reach him through a secondary number provided by the Police Department; that they had "spent hours" trying to find a method to get him into court but were "unable to find any definitive method to do so, including through use of subpoena power;" that while they were aware that he was due to return to duty with the Police Department "by June of 2018, at the latest" (People's affirmation at 12), they were unable to notify him through the Police Department notification system (People's second affirmation, dated July 12, 2018, at 2; transcript of July 16, 2018, court proceedings, pg. 9, lines 14-21); and that they communicated via telephone with several different departments of the NYPD in their unsuccessful efforts to contact Officer Ventura. And, as the People advised the Court during a proceeding on July 16, 2018, it was not until Officer Ventura returned to the Police Department in June of 2018 that they learned he had "spent a majority of [the reemployment period] in Georgia and [that he] had return[ed] to the military for schooling in order to get a promotion within the military" (transcript at 9, lines 3 - 7).
The defendant contends that the People's efforts do not constitute the "credible, vigorous activity" required to find they exercised due diligence to secure Officer Ventura's attendance. See People v. Washington , 43 N.Y.2d 772, 401 N.Y.S.2d 1007, 372 N.E.2d 795 [1977] ; see also People v. Figaro , 245 A.D.2d 300, 667 N.Y.S.2d 372 [2d Dept. 1997] [one home visit and a few phone calls by detective over two month period did not show due diligence in securing complainant's court attendance]; People v. Combo , 272 A.D.2d 992, 708 N.Y.S.2d 781 [4th Dept. 2000], lv denied 98 N.Y.2d 650, 745 N.Y.S.2d 508, 772 N.E.2d 611 [where police witness had traveled to unknown part of Turkey with uncertain return date, People "failed to show that they conducted a thorough investigation of those possibilities, albeit remote, that might produce the (witness), nor can it be said that it was very unlikely that any additional efforts would have resulted in locating the witness"] [internal quotations and citations omitted]; People v. Cates , 48 Misc.3d 135[A], 18 N.Y.S.3d 580 [App. Term, 1st Dept. 2015], lv denied 26 N.Y.3d 1007, 20 N.Y.S.3d 548, 42 N.E.3d 218 [2015] ; People v. Flores , 60 Misc.3d 1220 [A], 2018 WL 3824000 [Crim. Ct., Bronx County 2018] [time charged where People's documentary proof did not support assertion necessary witness was on military leave] ).
Inasmuch as the People have not provided conclusive proof that they exercised due diligence during the twenty (20) day pre-discharge period of February 8, 2018 through March 3, 2018, and the forty-five (45) day post-discharge period of March 4, 2018 to April 18, 2018, the Court orders a hearing to determine whether the People exercised due diligence in securing the defendant's attendance and whether these periods, or portions thereof, are excludable under CPL § 30.30 (4) (g).
To date, the Court finds thirty-five (35) days chargeable. A determination as to whether the periods of January 4, 2018 through April 18, 2018 and May 10, 2018 through June 4, 2018, or portions thereof, are chargeable, will be reserved until a hearing is held on or about October 30, 2018.
This opinion has been edited for publication.