People v Farr

[*1] People v Farr 2006 NY Slip Op 51391(U) [12 Misc 3d 1183(A)] Decided on July 18, 2006 County Court, Cattaraugus County Himelein, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 1, 2006; it will not be published in the printed Official Reports.

Decided on July 18, 2006
County Court, Cattaraugus County

The People of the State of New York

against

Jeffrey A. Farr, Defendant



06-51



EDWARD M. SHARKEY, ESQ.

District Attorney

Cattaraugus County, New York

For the People

DENNIS GAUGHAN, ESQ.

6194 South Park Avenue

Hamburg, New York 14075

For the Defendant

Larry M. Himelein, J.

A Huntley hearing was held before the court on June 20, 2006. A CPL 30.30 hearing also began that day and was continued on June 27, 2006. At the conclusion of the Huntley portion of the hearing, the defense conceded that the statements made by defendant were admissible. The court agrees and finds that the statements at the scene are admissible pursuant to Berkemer v. McCarty (468 US 420, 82 LEd 2d 317, 104 SCt 3138 [1984]) and the statements at the police station were preceded by Miranda warnings and a valid waiver. Accordingly, the motion to suppress the statements is denied.

Turning to the 30.30 issue, defendant was arrested and arraigned on April 1, 2005. The People had six months in which to state their readiness for trial (CPL 30.30 [1] [a]). In this case, the six months works out to 183 days (see People v. Cortes, 80 NY2d 201 n. 3, 590 NYS2d 9 [1992]). The People declared their readiness for trial on March 22, 2006, 356 days after defendant was arraigned. Accordingly, unless the People can exclude 173 days, the motion to [*2]dismiss must be granted.

Defendant was incarcerated after his arrest and, after being bailed out of jail, returned to court on April 4, 2005. That three day period between defendant's initial arraignment on

April 1, 2005 and his return to court on April 4, 2005 is excludable as a period of time that defendant was without counsel through no fault of the court (see CPL 30.30 [4] [g]; People v. Whitfield, 265 AD2d 894, 697 NYS2d 214 [4th Dept. 1999], lv. denied 94 NY2d 868, 704 NYS2d 544]).

On April 4, 2005, according to defendant and his then girlfriend, Patti Cecala, assistant public defender Heather Tomes was assigned to represent defendant. Defendant and Ms. Cecala also testified that a male assistant district attorney was present at that time, a fact confirmed by former assistant district attorney Tom Trace, who also testified that he was present that evening although he had no specific recollection of the case.

Defendant and Ms. Cecala testified that they returned to court on April 11, 2005 and observed Ms. Tomes speak to a female assistant district attorney. Ms. Tomes told defendant and Ms. Cecala that the case was being "sent to County" and defendant and Ms. Cecala left the courthouse. That testimony has the ring of truth to it although the court believes that defendant and Ms. Cecala had the date incorrect.

Kelly Balcom, the assistant district attorney who replaced Mr. Trace in that court, testified that her first appearance in Franklinville Town Court was on May 2, 2005, the first Monday of the month and the regularly scheduled D.A. night. She also agreed that she spoke with Ms. Tomes that evening. The court credits her testimony that this occurred on May 2, 2005 rather than April 11, 2005 and finds that the period between April 4, 2005 and May 2, 2005 is excludable as an adjournment by consent (CPL 30.30 [4] [b]). The court believes that on

April 4th, the case was probably adjourned by consent to the next D.A. night but notes that the People must be mindful that they have the burden to insure that the record is sufficiently clear to allow a reviewing court to make an "informed decision" as to whom an adjournment should be charged (see People v. Cortes, 80 NY2d 201, 215-216, 590 NYS2d 9, 18 [1992]).

Ms. Balcom, however, while admitting that she spoke with Ms. Tomes in court that evening, denies that she spoke with her about this case. While the court wishes to emphasize that it does not believe that any witness at the hearing was deliberately untruthful, defendant and his former girlfriend probably have a more vivid recollection of the court appearance (although they had the date wrong) than an assistant district attorney who appears in justice courts on a nightly basis. Further, their testimony that Ms. Tomes told them there was no local court plea available is clearly logical since the preliminary hearing was waived that night, and Ms. Tomes' affidavit indicated she would not waive a case to County Court without first ascertaining that no local court disposition was available.

This is important because the People claim that they were unaware of the case until January 13, 2005 when the public defender (foolishly?) moved to dismiss the charges on CPL 30.30 grounds. Because CPL 180.85 (2) provides that a 30.30 motion made prior to indictment cannot be made until 12 months have passed since the defendant was arraigned on the felony complaint, the court denied the motion on February 2, 2006. That period of 20 days is excludable under CPL 30.30 (4) (a) as "other proceedings concerning the defendant."

The People, now alerted to (or reminded of) the case, obtained an indictment and declared [*3]readiness on March 22, 2006. The period between February 2, 2006 when the initial speedy trial motion was denied, and March 22, 2006 is, of course, chargeable to the People. However, the People contend that, notwithstanding an assistant district attorney's presence in court on May 2, 2005, when the preliminary hearing was waived, under the authority of People v. Smietana (98 NY2d 336, 746 NYS2d 678 [2002]) and People v. LaBounty (104 AD2d 202, 4872 NYS2d 652 [4th Dept. 1984]), the period of time between May 2, 2005 and January 13, 2006 is not chargeable to them.

Smietana, LaBounty, and People v. Mickewitz (210 AD2d 1004, 620 NYS2d 636 [4th Dept. 1994]), stand for the proposition that the People cannot be expected to be ready for trial in a case they are unaware of. Those decisions are logical; in rural areas, assistant district attorneys are not present for every session of every court. A defendant might appear in the middle of the night and waive a preliminary hearing and the district attorney might never find out about the case. This is especially true if the local court does not send the district attorney's office a divesture form, as happens with unfortunate frequency, although it should be pointed out that here, the prosecution did not call anyone to testify that the district attorney was never sent a divesture form. In a case the district attorney claims to be unaware of, it would seem that testimony on that issue would be important.

In any event, this court does not believe that Smietana, LaBounty, and Mickewitz are applicable when an assistant district attorney is present in court when a defendant waives a preliminary hearing. Further, the court found as a factual matter that the assistant district attorney and the assistant public defender discussed this case before the preliminary hearing was waived. Will these cases now turn on whether an assistant district attorney is talking to another lawyer, smoking a cigarette or in the ladies room when a defendant waives a preliminary hearing? If an assistant district attorney steps out for a minute, should he or she be excused from reviewing the docket or checking with the court to see if anything was missed?

Because the court believes the answer to these questions is "no", the period between

May 2, 2005 and January 13, 2006 is chargeable to the People, and since that period alone is well over 183 days, the indictment must be dismissed.

Dated: Little Valley, New York

July 18, 2006

_________________________

HON. LARRY M. HIMELEIN