People v Marks (Michael)

[*1] People v Marks (Michael) 2007 NY Slip Op 50942(U) [15 Misc 3d 139(A)] Decided on May 7, 2007 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 7, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., LIPPMAN and OWEN, JJ
2006-1282 OR CR.

The People of the State of New York, Appellant,

against

Michael J. Marks, Respondent.

Appeal from an order of the Justice Court of the Town of Newburgh, Orange County (Richard Clarino, J.), dated June 6, 2006. The order granted defendant's motion to suppress evidence.

Order reversed as a matter of discretion in the interest of justice, and matter remanded to the court below for determination de novo of defendant's motion to suppress evidence, following a suppression hearing.

After denying the People's request for an adjournment of the suppression hearing, the court granted defendant's motion to suppress evidence. On appeal, the People contend that the court below erred by not granting their request to adjourn the hearing so as to afford their witnesses the opportunity to attend. The prosecutor
informed the court that one police officer was unavailable to testify because he was out of work due to knee surgery and the other police officer was attending mandatory K-9 training. While the granting or denial of an adjournment for any purpose is a matter which rests within the discretion of the court (see People v Singleton, 41 NY2d 402, 405 [1977]), a brief adjournment to secure witnesses should be granted where, as here, the witnesses are identified, are within the court's jurisdiction and there is a showing of some diligence and good faith in seeking to obtain their attendance (see People v Venable, 154 AD2d 722, 723 [1989]; People v Hernandez, 146 AD2d 646 [1989]). In this case, the witnesses are police officers for the Town of Newburgh, and the prosecutor demonstrated good faith and some diligence to secure their presence (see People v Brown, 72 AD2d 861 [1980]). Moreover, we note that a court is entitled to rely upon a prosecutor's representations, made as an officer of the court with an "unqualified duty of scrupulous candor that rests upon government counsel" (People v Hameed, 88 NY2d 232, 238 [1996], quoting Shotwell Mfg. Co. v United States, 371 US 341, 358 [1963], reh denied 372 US [*2]950 [1963]). The excuse proffered by the prosecution was sufficient to warrant an adjournment without the necessity of presenting further proof to the court of the officers' unavailability (see People v Celestino, 201 AD2d 91, 95 [1994]).

We note in passing that even if the People had acted more diligently in seeking to secure their witnesses for the hearing, the fact remains that the witnesses were unavailable to attend the hearing. Accordingly, the court below improvidently exercised its discretion in denying the People's request to adjourn the suppression hearing. Consequently, the order granting defendant's motion to suppress the evidence is reversed and the matter remanded to the court below for a determination de novo of defendant's motion to suppress evidence, following a suppression hearing.

Rudolph, P.J., Lippman and Owen, JJ., concur.
Decision Date: May 7, 2007