People v O'Donnell

[*1] People v O'Donnell 2005 NY Slip Op 51939(U) [10 Misc 3d 1053(A)] Decided on November 10, 2005 Criminal Court, Kings County Yearwood, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 10, 2005
Criminal Court, Kings County

The People of the State of New York,

against

Thomas O'Donnell, Defendant.



2004KN013936



For the Motion:

Carl Becker, Esq.

Attorney for Defendant

P.O. Box 297128

2425 Kings Highway

Brooklyn, NY 11229

(718) 252-0484

Opposed:

Hon. Charles J. Hynes

District Attorney, Kings County

By: Craig S. Lanza, Esq., Assist. D.A.,

Of Counsel for the People

Renaissance Plaza

350 Jay Street

Brooklyn, NY 11201-2908

Alvin Yearwood, J.

The pending defense motion to dismiss on constitutional speedy trial grounds is denied; the defense motion to dismiss on statutory speedy trial grounds is denied in part and granted in part for the following reasons.

BACKGROUND OF CURRENT & PREVIOUS SPEEDY-TRIAL MOTION PRACTICE

By Notice of Motion filed June 10, 2005, defendant moves for an order dismissing "this action" on speedy-trial grounds pursuant to CPL 210.20[1][g] and CPL 30.30. A previous [*2]motion to dismiss pursuant to these statutes had been denied by this Court.[FN1]

In the present motion, the defense contends that, despite their alleged declarations of readiness, the People's non-readiness on numerous adjourned dates rendered the prosecution chargeable with delay in excess of the statutory, 90-day limit applicable to the misdemeanor counts of which defendant is accused.

By an Affirmation in Response to Defendant's Motion, dated June 22, 2005, the People responded in opposition contending that the statutory time limit has not been exceeded because the People's admitted non-readiness on several adjourned dates was nonetheless excusable due to the temporary, reasonable unavailability of a material police witness, namely, Officer Nikolas Budimlic.[FN2] Furthermore, the prosecution argues that CPL 30.30 is inapplicable to the "traffic infractions" which defendant is accused of committing.[FN3]

In a Reply Affirmation filed on June 29, 2005, the defense contests the claimed unavailability of the People's witness, alleging on information and belief that the witness had recently testified in court. Additionally, bypassing the normal procedure to bring on a motion, defense counsel included in his reply affirmation a request that all charges be dismissed on [*3]constitutional grounds pursuant to CPL 30.20 due to the prejudice caused by the People's excessive delays. In support of that motion, the defense contends, inter alia, that, on information and belief, "[o]ne or more potential defense witnesses may no longer be available."

The prosecution responded to defendant's constitutional argument with an Affirmation in Response to Defendant's Reply Affirmation dated July 12, 2005.[FN4]

In an interim decision dated September 7, 2005, the Court found the aforementioned submissions to be lacking in some critical details and therefore requested that both counsel serve and file upon each other and the Court, on or before September 21, 2005, further sworn, factual allegations.[FN5]

The defense and prosecution each submitted a supplemental affirmation, dated respectively September 21 and September 20, 2005. The Court has reviewed these papers and finds that they do not raise issues of fact which would require a hearing to decide the present motions.[FN6] Although a hearing might help, perhaps, to refine the vague and conclusory allegations [*4]put forth in the supplemental papers, a hearing is not a discovery device. Nor is a hearing a substitute for counsels' own trial preparation or duty to delineate precise issues of fact. This is particularly true where factual issues may be crystallized through counsel's independent investigation, supported with sworn, non-conclusory allegations which set forth the particular sources and bases underlying counsel's claims.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The court file reflects that on March 1, 2004, defendant was arraigned on an accusatory instrument alleging, on personal observation of the deponent police officer, James R. Grillo, that defendant was driving a motor vehicle on a public highway at about 1 am on that date without his headlights being turned on and that at approximately that time, defendant exhibited signs of intoxication: to wit, slurred speech, red watery eyes, odor of alcoholic beverage on breath, flushed face and an unsteady gait. Defendant was also alleged by the deponent to be under the influence of alcohol with 0.172% by weight of alcohol in his blood as evidenced by a chemical test analysis, allegedly performed by Officer Budimlic.[FN7]

For these acts, defendant was charged, respectively, with the traffic infraction of Vehicle and Traffic Law § 375 [2] [a] [1], the traffic infraction of Vehicle and Traffic Law § 1192[1](impaired); the unclassified misdemeanor of Vehicle and Traffic Law § 1192[2] (intoxicated, per se); and the unclassified misdemeanor of Vehicle and Traffic Law § 1192[3] (intoxicated, common law). See, PL §§ 55.05[2][c]; 55.10[2][b],[4]; Vehicle and Traffic Law §§ 1193[1][a][b] and 1800.

The unclassified misdemeanors of Vehicle and Traffic Law §§ 1192[2]and 1192[3] each carry a potential sentence of imprisonment for up to a year (Vehicle and Traffic Law § 1193[1][b]). The applicable time limit for statutory ready-trial purposes in this case is therefore 90 days, as measured from commencement of the action with the filing of the instrument on March 1, 2004. (CPL 30.30[1][b])

The primary questions presented are whether the prosecution timely declared its readiness for trial within 90 days of commencement of the action on March 1, 2004, less any periods of excusable delay (CPL 30.30[1]; CPL 30.30[4]; People v Kendzia, 64 NY2d 331 [1985]) and, if so, whether the prosecution is responsible for any periods of post-readiness delay (People v Anderson, 66 NY2d 529 [1985]) which, when added to any pre-readiness delay, would exceed the 90-day limit. [*5]

As noted, supra, in its decision of March 1, 2005, this Court denied a defense motion to dismiss on statutory trial-readiness grounds because the 71 days [FN8] of chargeable delay did not exceed the time limit allotted to the People to declare their readiness for trial.

Having considered the defense affirmation submitted on September 21 and that of the prosecution submitted on September 20, 2005, the Court finds that both supplemental submissions are insufficient and do not raise issues of fact which would require a hearing. People v Santos, 68 NY2d 859 (1968). Accordingly, the motions may be decided on the papers submitted.

Upon due and deliberate consideration of all submissions and the court file, the Court denies the motion to dismiss on constitutional grounds and grants that part of the motion seeking dismissal, on statutory grounds, of the remaining counts charging defendant with the commission of the unclassified misdemeanor offenses of Vehicle and Traffic Law §§ 1192 [2](intoxicated, per se); and 1192[3](intoxicated, common law). The Court finds that the prosecution has accrued 149 days of chargeable time, a period in excess of the allowable statutory limit of 90 days.

The motion to dismiss on constitutional grounds (CPL 30.20) is denied because the defense has failed to allege sufficient supplemental facts to warrant the relief requested. People v Taranovich, 37 NY2d 442 (1974). Defense counsel's supplemental affirmation merely speculates, without any factual support, that an unnamed witness may no longer be available and is not believed to be living in the same area. The allegation that the defendant does not know how to get in touch with the witness also sheds no light on the claim of prejudice through prosecutorial delay.

The motion to dismiss on statutory grounds (CPL 30.30) is denied with respect to the two counts alleging the commission of Vehicle and Traffic Law §§ 375 [2] [a] [1] and 1192 (1).[FN9]

As to the remaining two counts, Vehicle and Traffic Law §§ 1192[2]and 1192[3], the Court finds they must be dismissed for the following reasons. The Court has already determined that as of March 1, 2005, the prosecution was chargeable with 71 days of delay after first having declared their readiness at arraignment on March 1, 2004.

An examination of the reasons for the adjourned periods following March 1, 2005, in the light of the supplemental submission of the prosecution, demonstrates that the prosecution is chargeable with an additional 78 days of post-readiness delay, bringing the total delay to 149 days - well beyond the 90-day limit.

March 1, 2005 to March 15, 2005

Following the Court's decision of March 1, the case was adjourned for hearing and trial. This period is excludable as a reasonable post-readiness adjournment following the decision on defendant's motion.

[*6]March 15, 2005 to March 31, 2005

On March 15, the prosecution was not ready and requested a one-week adjournment because the assigned assistant district attorney was leaving the office. The People are chargeable with 7 days.

March 31, 2005 to April 7, 2005

The People were not ready and are chargeable with 7 days.

April 7, 2005 to May 6, 2005

On April 7, 2005, the People were not ready. On April 12, 2005, the People filed with the court a written statement of readiness. However, there is no indication thereon that the notice was served upon the defense.[FN10] Absent a communication of readiness to the defense, a mere declaration by the filing of a written statement of readiness does not meet the People's obligations. Therefore, the People are chargeable with 29 days.

May 6, 2005 to June 10, 2005

On May 6, 2005, the People were not ready and they were charged with time until a notice of readiness was properly filed and served. No notice was filed as of June 10. Therefore the People are chargeable with 35 days.

June 10, 2005 to November 10, 2005

On June 10, 2005, the defense filed the instant motion, tolling the accrual of additional, chargeable time. CPL 30.30[4][a].

The prosecution's September 20th Affirmation in Response to Court Request for Additional Information does not support the People's contention that the absence of Officer Budimlic provided the exceptional circumstances which would make the delay in his appearance excludable under CPL 30.30[4][g]. First, the prosecution completely fails to provide any facts to support the specific period it wishes to be excluded. They do not know and cannot specify when precisely the officer was unavailable.[FN11] [*7]

The prosecution avers that it can respond to the remaining three requests. However, those responses are equally uninformative with regard to basic questions of "who, how, what, when, where, and to whom" and are replete with general statements which should have been made more specific.[FN12]

There is no specificity as to the efforts made to secure the witness's presence for this case. Nor have the People proffered any proof other than their offer, at a hearing, to present the very witness whose availability is unknown and whose production by the People is still in doubt.[FN13]

Lastly, as adverted to by the Court in the transcript of proceedings of June 10, 2005 (p4, lines 4 - 21) appended to defense counsel's supplemental affirmation, the witness in question had testified two weeks earlier at a trial before this Court, i.e., sometime in late May. This information was partly corroborated by the prosecution's acknowledgment that another assistant district attorney had arranged directly with the witness for his court testimony.[FN14] [*8]

In conclusion, the prosecution has not met its burden to set forth uncontroverted facts which would warrant excluding delays occasioned by the absence of a prosecution witness. Nor have the People met their burden of alleging non-hearsay, sworn factual allegations in support of their arguments. Accordingly, the additional periods of 78 days of chargeable delay, post the Court's previous decision wherein it found 71 days to be chargeable, when added thereto, amount to a total of 149 days of chargeable delay. A hearing on the defense motion to dismiss not being required, under these circumstances the Court grants defendant's motion to dismiss the misdemeanor counts. The two traffic infractions remain viable.

The foregoing constitutes the Court's decision and order. The clerk shall provide a copy hereof to counsel.

ALVIN YEARWOOD

CRIMINAL COURT JUDGE Footnotes

Footnote 1:The Court adheres to and incorporates its decision of March 1, 2005 except as to one finding therein which is hereby superseded: a total of 71, instead of 57, days were properly chargeable against the prosecution. The finding that the People announced their readiness at arraignment on March 1, 2004 remains and underpins the present findings of additional, post-readiness delay by the People.

Footnote 2:Officer Budimlic allegedly administered the test analyzing defendant's breath for blood alcohol content. According to ¶ 17 (Peo's Aff. Resp., 6/22/05), "On March 15, 2005, the people were not ready." According to ¶ 18 thereof, At every subsequent hearing (sic) the People have not been ready. This delay has been caused by no fault of the people but by the unavailability of the People's material witness." The prosecution goes on to allege unsworn facts in its accompanying Memorandum of Law (¶ I. [c]): "Officer Budimlic has been unavailable because of his recent transfer from the New York City Police Department to the Nassau County Police Department. The People, including the assigned assistant district attorney and a deputy from the Vehicular Crimes Bureau, have both made several unsuccessful attempts to secure Officer Budimlic's appearance at trial. These efforts evidence the type of 'credible, vigorous activity' necessary to show that the People used 'due diligence' in attempting to secure their witnesses (sic) appearance at trial.(citation omitted) Additionally, the People have reasonable ground to believe that Officer Budimlic will soon be available. The People are waiting for Officer Budimlic to graduate from the Nassau County Police Academy. Once he has graduated Officer Budimlic will become available to testify."

Footnote 3:The Court adheres to and incorporates its decision of March 1, 2005 which addressed this point and ruled against the defendant and in favor of the prosecution, denying dismissal of the two traffic infractions charged.

Footnote 4:Interestingly, in response to the defendant's constitutional argument for speedy-trial dismissal, the prosecution concedes that the witness was unavailable from March 1, 2005 to June 10, 2005, a period amounting to 101 days. (Peo's Memo. Law, ¶ I (2), p 3, July 29, 2005) This is in contrast to the People's position, in opposition to dismissal on statutory speedy-trial grounds, that the witness was unavailable for an approximately six-week period. (Peo's Affirm. Resp. Court. Req. Add'l. Info., p 2, Sept. 20, 2005)

Footnote 5:In particular, the Court requested the prosecution to specify: (1) precisely when the witness, Police Officer Nikolas Budimlic, became unavailable; (2) during what periods of time he was unavailable; (3) precisely when, if ever, he became available or was expected to become available; (4) the specific efforts made by the assigned assistant district attorney and any other member of the District Attorney's staff to secure the presence of the witness; (5) the relationship between periods of unavailability of the witness and the statement of readiness filed on April 12, 2005; and (6) the nature of the proof which would be offered with respect to the five preceding items. With respect to the defense, the Court requested it to specify: (1) the particulars underlying counsel's claim that the unavailable police witness testified in court in the recent past, and (2) the particulars as to the "one or more potential defense witnesses [who] may no longer be available" and how such unavailability would specifically prejudice the defendant.

Footnote 6:A defendant meets his burden of going forward on a motion made pursuant to CPL 30.30 by showing that a delay greater than the allowable statutory limit has occurred since the commencement of the action. Once shown, the burden then shifts to the People to show that certain periods of time should not be charged against them (see, People v Berkowitz, 50 NY2d 333 [1980]). After the People have announced their readiness for trial, the burden rests upon the People to clarify, on the record, the basis for an adjournment, so that on a subsequent speedy trial motion, the Court can determine to whom the adjournment should be charged (see, People v Cortes, 80 NY2d 201, 215-216 [1992]; People v Liotta, 79 NY2d 841, 843 [1992]).

Footnote 7:The court file contains a photocopy of a chemical test analysis document. It bears the purported signature of a police officer "Budimlic" underneath a printed form statement certifying, under penalty of perjury, "[t]hat the foregoing report is a true, accurate and complete record, made as part of and in the regular course of the New York City Police Department's business activity, at, or near, the date and time the test was made or blood was taken, and that the above test was performed by me." Information written by hand on the pre-printed test form refers to the arrest of the defendant at about the time alleged, the taking of a breath sample, performance of a test to which a specific number was assigned, and a test result of ".17" (% Blood Alcohol).

Footnote 8:See, Note 1, supra.

Footnote 9:The motion to dismiss on statutory grounds with respect to the two counts charging traffic infractions (Vehicle and Traffic Law §§ 375[2][a][1] and 1192[1](impaired) was previously denied. See, Note 3, supra.

Footnote 10:The one-page, form "PEOPLE'S STATEMENT OF READINESS FOR TRIAL PER CPL 30.30" is subscribed by the presently assigned assistant district attorney and is dated "4/12/05"; the spaces following the words "SERVED ON DEFENSE BY:" and "DATE:" are blank.

Footnote 11:According to the supplemental affirmation, as to the 6 items requested by the Court on September 7: "Since the above-mentioned memorandum, the People, specifically the previous assigned assistant, namely the undersigned, have not managed to contact the witness. Thus, at present, the People are unable to adequately respond to requests numbered 1 through 3." (Emphases supplied) Interestingly, even since submission of their supplemental affirmation, the prosecution has not, over the last 51 days, supplied any further, specific information as to those three items concerning the officer's availability - past, present or future.

Footnote 12:With regard to the Court's 4th question (see, Note 4, supra), the People responded: "During the spring of 2005, the People made several attempts to get hold of the witness by means of the NYPD Highway #2 Command. The People had been informed by the NYPD Highway #2 Command that the witness had left the employ of the New York City Police Department and was now employed at the Nassau County Police Department. The People had been informed by the NYPD Highway #2 Command that although the witness no longer worked for the NYPD, the witness had agreed to fulfill his obligations with the NYPD, including testifying at (sic) trail. That said, the NYPD Highway #2 Command also indicated that the Nassau County Police Department had required the witness to be trained at the Nassau County Police Department's Academy for approximately six weeks and thus, the witness would be unavailable to fulfill obligations with the NYPD for approximately six weeks. Based on this information, the People argued in their previous motion that six weeks of 30.30 time should be excludable because of the witnesses availability (pursuant to CPL 30.30(4)(g))."

Footnote 13:With regard to the Court's 5th question (see, Note 4, supra), the People responded: "With regards to the April 12, 2005 statement of readiness, the People had filed such statement on the assumption that the witness would be available only to find out that the witness was not available." (Emphases supplied)." Lastly, with regard to the Court's 6th question (see, Note 4, supra), the prosecution responded: "[w]ith regards to nature of proof, if, .....Court grants a hearing.....and the People are able to produce the witness for a hearing, the People would use the witnesses (sic) testimony regarding the witnesses' availability." (Emphases supplied).

Footnote 14:With regard to the Court's 4th question (see, Note 4, supra), the People responded: "However, it has since come to the People's attention that during this period of time the witness managed to testify in Criminal Court on another case, according to Deputy Bureau Chief Gayle Dampf-Litman who informed the undersigned of such occurrence. This, it was communicated to the undersigned, was arranged by means of direct communication between ADA Dampf-Litman and the witness and not by means of the NYPD Highway #2 Command." (Emphases supplied).