People v Billups

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[*1] People v Billups 2005 NY Slip Op 50511(U) Decided on April 12, 2005 Criminal Court Of The City Of New York, New York County Harris, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 12, 2005
Criminal Court of the City of New York, New York County

THE PEOPLE OF THE STATE OF NEW YORK

against

Herman Billups, Defendant



2004NY010230

Gerald Harris, J.

The defendant, Herman Billups, is charged with a violation of PL 215.50(3), criminal contempt in the second degree. He moves, pursuant to CPL 170.30(1)(e), to dismiss the complaint on the ground that he has been denied his right to a speedy trial pursuant to CPL 30.30.

Where, as here, the defendant is accused of committing a misdemeanor punishable by a sentence of imprisonment of more than three months (ie: a class A misdemeanor), the People are required to be ready within 90 days of the commencement of the case. CPL 30.30(1)(b).

The People contend that they are chargeable with 52 days. They challenge the inclusion of any time between July 27, 2004 and September 21, 2004, a period of 56 days, on the ground that the delay was occasioned by the hospitalization of the complaining witness.

A delay caused by an injury to a police officer was held properly excluded as an exceptional circumstance pursuant to CPL 30.30 (4)(g). People v. Hernandez, 268 AD2d 344 (1st Dept. 2000). In that case the representation by the People was found sufficient to permit the court to find that the adjournment was warranted. Hernandez, id at 345.

In People v. Womack, 229AD2d 304, aff'd 90 NY2d 974 (1997), the court held that the unavailability of a police office, by reason of her giving birth, satisfied the People's burden of establishing the excludability of the attendant delay where the People "diligently kept themselves and the court apprised of her expected return date." Womack, supra, at 304.

Whether a witness is unavailable within the meaning of CPL 30.30 (4)(g) is a question of fact as to which the People have the burden of proof.. (People v. Zirpola, 57 NY2d 706 (1982); People v. Martinez, 268 AD2d 354 (1st Dept.) lv denied 94 NY2d 922 (2000)).

In Martinez, supra, the court found that the People met their burden by tendering [*2]sufficient medical evidence to substantiate their claim that the officer's unavailability was due to a legitimate medical reason. The statute's "due diligence" requirement (CPL 30.30 [4][g]), does not require the People to show that they made extraordinary efforts to secure the witness' presence (Martinez, supra, at 355) (People v. Alcequier, ___ AD3d ___, 788 N.Y.S2d 289 (1st Dept. 2005). However, a review of the transcript here makes it clear that the People have failed to exercise any diligence. Thus, on July 27, 2004, after answering not ready, the People told the court that the complaining witness checked into a hospital on July 22, 2004 and that the adjournment should be excludable. When the court inquired as to the nature of the witness' ailment, the People responded that the information was unavailable. The court, in substance, advised the People that they had to establish that the witness was in the hospital for a bona fide reason, the nature of her ailment and how long she was expected to be unavailable. The People offered no response at the time although, in their response to this motion, they represent that the witness was discharged from the hospital on July 30, 2004. There is no indication that the People made any effort to advance the case.

If this were the complete state of the record, the entire 56 - day delay would be chargeable to the People based upon their lack of diligence. However, the same transcript evidences that it was defense counsel, and not the court or the prosecution, who selected the date to which the case was adjourned. When defense counsel participates in setting the adjourned date, rather than simply stating that certain dates are not convenient, he effectively consents to the adjournment. People v. Matthews, 227 AD2d 313 (1st Dept.), appeal denied, 88 NY2d 989 (1996); cf. People v. Smith, 82 NY2d 676 (1993). Accordingly, the time between July 22 and September 21, 2004, is excluded.

The calculation of includable - excludable time as to the other adjournments is as follows:

The defendant was arraigned on February 7, 2004 and the case was adjourned to February 27, 2004 for a supporting deposition. The People served the supporting deposition by mail, together with a certificate of readiness on February 20, 2004, tolling the chargeable time. People v. Stirrup, 91 NY2d 434 (1998); People v. Kendzia, 64 NY2d 331 (1985). The People are charged with 13 days.

On February 27 the court fixed a motion schedule and adjourned the case to April 22, 2004 for response and decision. This time is excluded for motion practice. CPL 30.30(4)(a).

On April 22 defense counsel failed to appear and no motion had been filed. The court adjourned the case to April 29 for the assignment and appearance of new counsel. This time is excluded. CPL 30.30(4)(f); People v. Mannino, 306 AD2d 157 (1st Dept. 2003).

On April 29 new counsel appeared and a new motion schedule was established. The case was adjourned to May 27 for response and decision. This time is excluded for motion practice. CPL 30.30(4)(a). [*3]

On May 27 the court ruled on the motion, granted a Huntley hearing and fixed July 1for hearing and trial. This time is excludable to permit preparation for hearing and trial. People v. Douglas, 156 AD2d 173 (1st Dept. 1989); People v. Green, 90 AD2d 705 (1st Dept. 1982).

On July 1 the People were not ready and requested an adjournment to July 19. The case was adjourned to July 27 for hearing and trial. The People, in this post - readiness situation, are chargeable only with the time requested, 18 days. People v. Stirrup, supra; People v. Curtis, 196 Misc 2d 1001 (Crim. Ct. NY Co. 2003).

On July 27 the People answered not ready because of the witness's hospitalization. No date was requested by the People and, as previously discussed, defense counsel is deemed to have consented to an adjournment to September 21. This entire period is excludable.

On September 21 the People were not ready and requested an adjournment to September 29. The case was adjourned to November 22. The People are chargeable with the time requested, 8 days. People v. Stirrup, supra.

On November 22 the People were not ready and requested a two - week adjournment. The case was adjourned to January 25, 2005. The People are chargeable with the time requested, 14 days. People v. Stirrup, supra.

On January 25 the defendant served a motion to dismiss for lack of speedy trial. The case was adjourned to March 9 for response and decision. This time is excluded for motion practice. CPL 30.30(4)(a).

On March 9 the court reserved decision until April 12. This time is excluded for motion practice.

The total time chargeable to the people is 53 days. Since the People have 90 days to be ready for trial, defendant's motion to dismiss pursuant to CPL 30.30 is denied.



Dated: New York, New York

April 12, 2005

__________________________

Gerald Harris

J.C.C.

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