People v Marchica

[*1] People v Marchica 2009 NY Slip Op 51815(U) [24 Misc 3d 1239(A)] Decided on July 17, 2009 Suffolk Dist Ct, First District Alamia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 17, 2009
Suffolk Dist Ct, First District

The People of the State of New York,

against

Meghan L. Marchica, Defendant.



2008SU18178



THOMAS M. SPOTA, III

Suffolk County District Atty.

400 Carleton Avenue

Central Islip, NY 11722

By: Melisa Bliss

Assistant District Attorney

Debra Buxbaum, of Counsel

David Mirsky, Esq.

114 Old Country Road, Ste. 244

Mineola, NY 11501

Salvatore A. Alamia, J.

ORDERED that this motion by the defendant is decided as follows:

The defendant moves for an order pursuant to CPL 170.30(1)(e) and 30.30(1)(b) dismissing the information charging her with Driving While Intoxicated, in violation of VTL 1192(3) and (2), and with two traffic infractions in violation of VTL 1111(d) and 1128(a), on the ground that the People have exceeded the ninety day statutory readiness period. At issue is the excludability of the periods of delay from November 21, 2008 through July 1, 2009.

The defendant has demonstrated a delay in excess of the ninety day period within which the People must be ready for trial, thereby shifting the burden to the People to prove that they were ready within that time or that periods of delay are excludable pursuant to CPL 30.30(4). See, e.g., People v. Chavis, 91 NY2d 500, 505 (1998); People v. Kendzia, 64 NY2d 331, 337 (1985); CPL 30.30(1)(b). The People do not appear to have declared their readiness for trial, but contend that the defense consented to the adjournment from November 21, 2008 to January 23, 2009, making this period excludable pursuant to CPL 30.30(4)(b), and that the subsequent adjournments in the case are

excludable pursuant to CPL 30.30(4)(g) due to the unavailability of the arresting officer, Police Officer Sonia Martinez.

The People represent that Officer Martinez has been medically unavailable to testify since December 18, 2008 as a result of an injury sustained in the course of her duties. In support of this representation, the People have submitted a memorandum from Lieutenant William Blaschuk, Commanding Officer of the Suffolk County Police Department Medical Evaluation Bureau, dated July 15, 2009, stating that Officer Martinez "is currently not working and is recovering from surgery she had on 3/26/09 for a work-related injury she sustained on 12/18/08. The officer is currently not available for any Court proceedings and her next evaluation by the Police Surgeon will be July 22, 2009."

The unavailability of a principal prosecution witness for medical reasons is an exceptional circumstance warranting the exclusion of the particular period of delay. See, People v. Goodman, 41 NY2d 888 (1977); People v. Lindsey, 52 AD3d 527 (2d Dept. 2008), lv. den. 11 NY3d 738 (2008); People v. McLeod, 281 AD2d 325 (1st Dept. 2001); People v. Luperon, 196 Misc 2d 154 (Criminal Ct., New York Co. 2003); People v. Celestino, 201 AD2d 91 (1st Dept. 1994); CPL 30.30(4)(g). The Court is entitled to rely on the unrefuted representation of the prosecutor, as an officer of the Court, concerning a witness's medical unavailability. People v. Hernandez, 268 AD2d 344 (1st Dept. 2000), lv. den. 95 NY2d 853 (2000); People v. Alcequier, 15 AD3d 162 (1st Dept. 2005), lv. den. 4 NY3d 851 [*2](2005); People v. Taylor, 2001 NY Slip Op 40485U (App. Term, 1st Dept. 2001); People v. Bailey, 221 AD2d 296 (1st Dept. 1995); People v. Celestino, supra. The People are neither required to show that the witness was completely immobilized or totally incapacitated, nor that they had made extraordinary efforts to secure his or her presence. See, People v. Alcequier, supra; People v. Bailey, supra.

The People's representation and documentary evidence that Officer Martinez has been unavailable to testify since December 18, 2008 is unrefuted. The Court is satisfied that the period of the officer's medical unavailability is excludable as an exceptional circumstance pursuant to CPL 30.30(4)(g). The remaining contested period of delay from November 21, 2008 to January 23, 2009, for which a transcript has been ordered but not yet obtained, does not exceed the ninety day statutory readiness period. Defendant's request for dismissal pursuant to CPL 30.30 therefore is denied as premature.

That branch of the motion seeking dismissal pursuant to CPL 30.20, on the ground that defendant's constitutional right to a speedy trial has been violated, is similarly denied as premature. The defendant has not demonstrated that the extent of any delay herein was unduly lengthy, given the nature of the charges pending against her, nor has she shown that her defense has been impaired or that she has otherwise been prejudiced by the delay. See, People v. Taranovich, 37 NY2d 442 (1975); People v. Gordon, 2004 NY Slip Op 50190U (app. Term, 9th & 10th Jud. Dists. 2004), lv. den. 3 NY3d 674 (2004), on reconsideration lv. den. 3 NY3d 706 (2004).

The parties are directed to appear on the New Court Date indicated below.

New Court Date:

Dated:

J.D.C.

THOMAS M. SPOTA, III

Suffolk County District Atty.

400 Carleton Avenue

Central Islip, NY 11722

By: Melisa Bliss

Assistant District Attorney

Debra Buxbaum, of Counsel

David Mirsky, Esq.

114 Old Country Road, Ste. 244

Mineola, NY 11501