People v O'Grady
Annotate this CaseDecided on June 24, 2009
District Court of Nassau County, First District
The People of the State of New York, Plaintiff
against
Jamie W. O'Grady, Defendant.
2008 NA 0098
Sondra K. Pardes, J.
The defendant is charged with a violation of Penal Law §120.00 (Assault in the Third Degree). The defendant moves for an order, pursuant to CPL §30.30, to dismiss this case. The People oppose this motion.
Procedural History
The defendant was arraigned on the above referenced charge on January 7, 2008, and the case was adjourned to an IAS part 1 on February 4, 2008. The case was then adjourned repeatedly for pre-trial discovery and motion practice. The court directed that a pre-trial hearing be held on July 28, 2008 and on that date the matter was adjourned, "at the People's request," to August 11, 2008. Thereafter the hearing was repeatedly adjourned, to September 5, 2008, September 17, 2008, October 7, 2008, November 19, 2008 and January 14, 2009.
The People filed a Certificate of Readiness for trial on December 2, 2008. However, on January 14, 2009 the matter was adjourned again at the People's request to February 17, 2009. On February 17, 2009 the defendant filed the instant motion for dismissal on the grounds that the defendant's right to a speedy trial has been violated because the People failed to be ready for trial within 90 days of the commencement of this criminal action.
In opposition to the defendant's motion the People assert that the defendant's right to a speedy trial has not been violated. They argue that most of the adjournments in this case were based on the unavailability of police witnesses whose testimony is material to the issues that must be addressed at the pre-trial "Huntley/Wade/ Dunaway" hearing that [*2]has yet to take place.
According to the People, the incident in question allegedly occurred on December 28, 2007 in a parking lot adjacent to a bar in Rockville Centre. Two police officers, Arthur Dodd and Ernest Ziegler, from the Rockville Centre Police Department, conducted a "show-up identification procedure with a witness to the incident." Police Officer Ziegler also obtained written statements from the "Victim" and a witness who identified the defendant. The people argue that "(b)oth Police Officers are relevant and material to the hearing (sic)." They also state that either officer may testify with respect to the "Wade portion" of the hearing but only Officer Ziegler can testify to the statements made by the victim and the witness "which are material to the Dunaway portion of the hearing."
The People assert that both of these officers have been "unavailable" and therefore the delays in holding the pre-trial hearings should not be charged to the People. The People state that P.O. Dodd was "on sick leave for cancer throughout the majority of 2008." It appears that he did return to work at some point at the end of 2008. The People state in their opposition papers that they filed a certificate of readiness on December 2, 2009, because they learned that P.O. Dodd had returned to work, " but his return to work was short-lived because of his injury in the line of duty," that allegedly occurred on November 29, 2008. As of March 15, 2009 ADA Kubic stated that P.O. Dodd " is now incapacitated and will not be able to testify until June 2009."
The People have annexed transcripts of some of the court proceedings to their papers in opposition to the defendant's motion. (Inexplicably, the People failed to produce any transcripts for the period from February 4, 2008 to July 28, 2008.)
Pursuant to CPL §30.30(1)(b), a motion made pursuant to CPL §170.30 must be granted where the People are not ready for trial within ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months, and none of which is a felony. The defendant herein was arraigned on January 7, 2008, and, to date, far more than ninety days have passed since the commencement of this action.
Once a defendant has shown a delay greater than the applicable speedy trial period, the burden of proving that certain periods within that time should be excluded falls on the People. Such a delay is present in this case and the Court will now review the relevant periods discussed in the papers submitted on the motion.
January 7, 2008 - February 4, 2008 [*3]
With respect to the period from January 7, 2008, date of arraignment, to February 4, 2008, the People agree that this time is chargeable to the People. 28 days charged to the People.
March 11, 2008 - April 17, 2008
The People did not serve VDF's by March 11, 2008 as directed by the court. The case was
adjourned two times to April 1, 2008 and again to April 17, 2008. The People concede that there
was a delay of 37 days from the date VDF's were due and the date they served them. The People
cite a Second Department case, People v Inswood, 180 AD2d 649 ((1992), to support
their argument that this time is "excusable because the case is now in motion practice once the
Defendant makes the request for disclosure." The court finds that the People misconstrued the
court's holding in Inswood which clearly refers to the 64 day period of time the People
took to respond to the defendant's omnibus motion.
There is no support for the People's position that a request for VDF's places a case
"in motion practice." 37 days charged to the People.
June 3, 2008 - June 12, 2008
The court file reflects that this case was adjourned on April 17, 2008 to May 20, 2008 for motions, at the defendant's request. On May 20, 2008 the case was adjourned to June 3, 2008 for the People's opposition. On June 3, 2008 the People requested an additional adjournment to June 12, 2008 to file opposition papers. The defendant asserts that the People should be charged with the 9 days from June 3rd to June 12th. The People argue that "(t)he Appellate Court's have repeatedly held that twenty-three (23) days is a reasonable time to respond to Defendant's motion" and therefore that time should be excluded. Although the People fail to cite any "appellate court" decisions, this court finds that this period of time was reasonable and should be excluded (see, People v Driver, 248 AD2d 172 {1st Dept., 1998])
July 28, 2008 - August 11, 2008
On June 12, 2008 the court apparently granted the defendant's request for a
Wade/Huntley hearing from the bench and scheduled the hearing for July 28, 2008. The
transcript of the record reflects that on July 28, 2008 the People requested an adjournment to
August 11, 2008, with no further explanation. The defendant asserts, and the court agrees, that
this time must be charged to the People. 14 days charged to the People
[*4]On August 11, 2008, the People were not
ready to proceed. The transcript of the record reflects that the Assistant District Attorney spoke
to the police commanding officers and learned that Officer Dodd was "in the hospital battling
terminal cancer" and Officer Ziegler was hospitalized for injuries sustained on duty. The
transcripts also reflect that on the following dates September 5, 2008, September 17, 2008,
October 7, 2008, the People requested adjournments because the police officers were still sick or
injured. The defendant argues that the People should be charged with 25 days from 8/11 to 9/5;
12 days from 9/5 to 9/17, 20 days from 9/17 to 10/7, 43 days from 10/7 to 11/19 and 56 days
from 11/19 to January 14, 2009.
With respect to the adjournment from September 17 to October 7 the record clearly establishes that the defendant requested this adjournment and therefore this period of time is excludable.
With respect to the balance of the adjournments from August 11, to November 19, 2008, the court finds that they were all based on the unavailability of the People's witnesses due to illness and/or injury. The unavailability of a witness due to injury or illness is an "exceptional circumstance" pursuant to CPL §30.30(4)(g) and the People are entitled to an exclusion of the time it takes to secure the witness's appearance (People v McLeod, 281 AD2d 325, [1st Dept., 2001]). On each occasion the People made a clear record that Officer Dodd was undergoing cancer treatment and Officer Ziegler was recovering from a serious automobile accident. The People's representations are generally sufficient to establish the witness's unavailability on medical grounds; (People v Alcequier, 15AD3d 162, [1st Dept., 2005]).
On November 19, 2008, the record reflects that the People represented that they were ready to go forward because Officer Dodd had been released from the hospital and would be available to testify in one week. They indicated that they were unsure that Officer Ziegler was sufficiently recovered, but requested an adjournment to November 26, 2008 for the hearing. The record is also clear that the defendant requested an adjournment from November 26 to January 14, 2009.7 days charged to the People
January 14, 2009 - February 17, 2009
On January 14, 2009 the transcript of the record reflects that the Assistant District Attorney stated that since the last adjournment they had filed a Certificate of Readiness based on the "representation from the Rockville Centre Police" that one of the officers would be available to come to court. She went on to state that although she had since learned that the officer was injured again, apparently referring to P.O.Dodd. "I do believe [*5]that within the next few weeks he will be in a position to be able to testify." She then requested an adjournment to February 17, 2009. However, she goes on to state that in the event that neither of the Rockville Centre police are available on that date they would then ask to move forward with just the "Huntley" portion of the hearing. There is no transcript of the proceeding on February 17, 2009, but on that date the defendant filed the instant motion to dismiss pursuant to CPL §30.30.
The defendant argues that the certificate of readiness filed by the People on December 2, 2008 was "illusory and should be rejected by the court". On January 14, 2009, the next court date following the filing of the certificate of readiness, the People requested another adjournment to February 17, 2009 because they were still unable to produce their witnesses whose testimony was in their words "material" to the pre-trial hearings originally scheduled for July 28, 2008.
ready for trial' in CPL 30.30 (1) encompasses two necessary
elements. First, there must be communication of readiness by
the People which appears on the trial court's record. This requires
either a statement of readiness by the prosecutor in open court,
transcribed by a stenographer, or recorded by the clerk or a
written notice of readiness sent by the prosecutor to both defense
counsel and the appropriate court clerk, to be placed in the original
record. The second requirement under the statute, as noted in
Hamilton and Brothers, is that the prosecutor must make his
statement of readiness when the People are in fact ready to
proceed. The statute contemplates an indication of present
readiness, not a prediction or expectation of future readiness,
People v Kendzia, 64NY2d 331, 337 (1985).
A valid statement of readiness requires that the People be presently ready for trial and "where the People have complied with all pending proceedings required to be decided before the trial can commence,"(People v Caussade, 162 AD2d 4,8, [2nd Dept., 1990]).
In the instant case the People have failed to produce witnesses for a pre-trial hearing ordered by the court to determine whether critical evidence could be considered at trial. Therefore, they have not complied with all the pending proceedings required to be decided before a trial can commence. Accordingly, the court finds that the certificate of readiness filed on December 2, 2008, was illusory and therefore "insufficient to stop the running of the time for CPL 30.30 purposes," (People v Robinson, 171 AD 475 [1st Dept., 1991]). [*6]
The defendant also argues that the People's claim to the "exceptional circumstances"exclusion under CPL §30.30(4)(g) must be rejected. Despite repeated assurances that they expected the witnesses to be available, the People were unable to produce either one of the police officers who they maintain are essential to their case, for approximately 7 months. The People's affirmation in opposition to the instant motion indicates that they did not expect Officer Dodd to be available until "June 2009". Moreover, there is no indication of when, if ever, P.O. Ziegler will be available to testify. The letter from the Executive Officer of the Rockville Center Police Department, dated March 6, 2009,( Exhibit A to the People's Affirmation in Opposition), states that Officer Ziegler is " expected to be unavailable for at least another month, and quite probably for longer than that," ( emphasis added).
CPL §30.30(4)(g) addresses the excludability of time based on exceptional circumstances and provides in, pertinent part,
periods of delay occasioned by exceptional circumstances , including
but not limited to, the period of delay resulting from a continuance
granted at the request of a district attorney if (i) 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; or (ii) the
continuance is granted to allow the district attorney additional time to
prepare the people's case and additional time is justified by the
exceptional circumstances of the case.
As indicated above, Courts have regularly found that the unavailability of a witness on medical grounds constitutes a exceptional circumstance in determining whether the time to secure the witness's appearance should be excluded from CPL §30.30 computations, (see, People v Alcequier, supra). However, the determination as to whether a delay should be excluded from the statutory time limits pursuant to the CPL 30.30 [4][9] exception requires not only the People demonstrate that they excercised due diligence in attempting to secure evidence but also that "reasonable grounds existed to believe that such evidence would become available in a reasonable period of time," (People v Spadafora, 131 AD2d 40, 44 [1st Dept., 1987]), citing People v Daniel P., 94 AD2d 83). In the instant case the People repeatedly requested adjournments of the "pre-trial hearing" claiming that essential police witnesses were unavailable due to illness and or injury. On January 14, 2009 the People stated that:
"two officers from Rockville Center, which are material witnesses
to the Wade portion without which, we cannot proceed...an adjournment [*7]
of the case until February 17th for the purpose of those hearings. If the
Rockville Centre Police are still unable to come in, we intend to ask for
a bifurcated...hearing just to move on with the Huntley portion at that time."
It is clear from the prosecutor's statement on January 14, 2009 that the People did not have reasonable grounds to believe that their two essential witnesses, P.O. Dodd and P.O. Ziegler would be available on the next date or at any reasonable time in the future. Moreover, the probability of the long term unavailability of P.O. Ziegler was confirmed by the March 6, 2009 letter from the Rockville Centre Police Department. Accordingly the court finds that the time from January 14 to February 17, 2009 cannot be excluded pursuant to CPL §30.30[4][g]. 34 days charged to the People
Based on the above, the court finds that 120 days must be charged to the People, pursuant to CPL §30.30 .Accordingly, the defendant's motion is granted and this case is dismissed.
This constitutes the decision and order of the court.
_______________________
DISTRICT COURT JUDGE
Dated: Hempstead, New York
June 24, 2009
cc:Kathleen Rice, Nassau County District Attorney
DerGarabedian & Dillon, Esq.,
SKP:rad
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