People v Delmonte

[*1] People v Delmonte 2005 NY Slip Op 50301(U) Decided on February 18, 2005 Supreme Court, Bronx County Iacovetta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 18, 2005
Supreme Court, Bronx County

PEOPLE OF THE STATE OF NEW YORK,

against

Aristides Delmonte, Defendant.



2253/02

Nicholas Iacovetta, J.

The defendant was indicted for the crime of Assault in the First Degree, P.L. §120.10[1].

He moves to dismiss the indictment pursuant to C.P.L. §30.20 and C.P.L. §30.30[1] or, in the alternative, requests a hearing, as well as release from custody pursuant to C.P.L. §30.30[2][a].

The defendant alleges that the People are responsible for several discrete periods of delay alternately described as a total of "10 ½ months" and "11 ½ months." The court will address only the specific periods contested by the defense motion.

Defendant was arraigned on the felony complaint on April 27, 2002. The People had six months from that date, a total of 183 days, within which to announce and maintain their readiness (see, People v. Anderson, 66 NY2d 529, 536-538 [1985]).

Most of the delay alleged by the defense, nine months, occurred while defendant was incarcerated on other charges. Since this period of nine months will be dispositive of defendant's motion, the court will consider it before addressing the other periods. First, it will review the procedural history of the case to place the relevant time periods in context.

Pre-trial hearings immediately preceding trial commenced on June 9, 2003. The case was adjourned to June 12, 2003 for continued hearings. The defendant failed to appear on June 12. A bench warrant was issued and stayed until June 16. The defendant failed to appear on June 16 and a bench warrant was issued by the then presiding judge.

The defendant was rearrested on November 14, 2003 in Westchester County on an unrelated burglary. The defense affirmation incorrectly lists the start of defendant's incarceration in Westchester County as November 12, 2003. The burglary actually occurred on November 13, 2003 but defendant was not arrested until November 14, 2003. He was held in continuous custody in Westchester County before eventually pleading guilty on July 22, 2004 to Criminal Possession of Stolen Property in the Third Degree, P.L. §165.50, a class D felony. He was [*2]sentenced on October 6, 2004 to nine months which was immediately converted to time served.

The defendant prepared a pro se C.P.L. §30.30 motion seeking dismissal of this case while he was still incarcerated in Westchester County. The affidavit of service attached to the motion states that a copy was sent to the People and defense counsel on May 12, 2004. The original motion was sent to the Bronx County Supreme Court Clerk's Office on the same date. It was placed on the motion calendar for its initial appearance on June 22, 2004 as noted by the date inserted by the clerk's office on the face of defendant's motion. It was then adjourned to July 20, 2004 for the People and defense counsel to appear.

The People, meanwhile, obtained a court order dated July 9, 2004 to produce defendant on July 15, 2004. Defendant was produced in Bronx County on July 15, 2004 and the prior bench warrant was vacated. Defendant as required by the above court order was then returned to Westchester County to finish serving his unrelated sentence which ended on October 6, 2004. Defendant's Bronx County case was then adjourned to August 6, 2004. His pending pro se speedy trial motion was adjourned to the same date. Defendant's case was then adjourned to August 13, 2004 and again to September 17, 2004.

Meanwhile, defendant filed a subsequent pro se motion while still incarcerated in Westchester County. It was dated August 26, 2004. The affidavit of service dated August 25, 2004, stated copies were sent to the court, prosecution, defense counsel and clerk's office of the Bronx County Supreme Court. This motion sought defendant's production in Bronx County Supreme Court on September 10, 2004 pursuant to C.P.L. §560.10 so that defendant could receive a sentence on his Bronx County case that would be concurrent with the nine month sentence he expected to receive in Westchester County.

Defendant's Bronx County case was adjourned on September 17, 2004 to September 29, 2004. Defense counsel filed his current "supplemental motion to dismiss" pursuant to C.P.L. §30.30 on September 27, 2004.

November 14, 2003 to July 15, 2004

The above period concerns post-readiness delay since the People previously answered ready on May 16, 2003 (see transcript 5/16/03, p. 2). They also answered ready before the start of pre-trial hearings on June 9, 2003.

Once the People became aware of the defendant's subsequent incarceration, C.P.L. §30.30[4][e] required that they exercise due diligence in attempting to obtain his presence for trial despite any earlier statement of readiness (see, People v. Anderson [Jones], 66 NY2d 529, 540 [1985]; People v. Daniels, 217 AD2d 448, 453 [First Dept. 1995], app. dism. 88 NY2d 917 [1996]). People v. Howard, 182 Misc2d 549, 699 NYS2d 650, cited by the People, is not to the contrary (id., 554 n*). Any failure to do so on their part would have been a direct impediment to their ability to proceed to trial (see, People v. McKenna, 76 NY2d 63-64 [1990]).

Responsibility for this time period is thus determined by ascertaining the date when the People first knew about defendant's subsequent incarceration. The People assert that this occurred on June 22, 2004 when defendant's pro se speedy trial motion initially appeared on the calendar.

When a defendant is subsequently incarcerated in the same jurisdiction as a pending case, i.e., here New York State, knowledge by the police of that incarceration is normally imputed to the People (see, People v. McLaurin, 83 NY2d 123, 126 [1975], finding that "knowledge on the [*3]part of the police department would, of course, be imputed to the District Attorney's office. A defendant ought not be penalized because of any inadequacy of internal communications within the law enforcement establishment"; see also, People v. Myers, 184 Misc2d 394, 709 NYS2d 330, recognizing that "... it is well established that if a defendant is incarcerated in our jurisdiction... the People must be diligent in attempting to obtain his presence for trial despite their prior statement of readiness").

It is only when a defendant is incarcerated in another jurisdiction, i.e., not New York State, that knowledge by the out-of-state authorities of that detention is not automatically imputed to the People. Moreover, they are not required to exercise due diligence to discover defendant's out-of-state incarceration (see, People v. Myers, 184 Misc2d 394, 397-398, relying on People v. Carter, 91 NY2d 795, 799 n*, to find that the People's failure to exercise due diligence to discover defendant's detention in another state did not contribute to defendant's continuing absence in a post-readiness context).

Notification to the People from law enforcement groups can occur indirectly (see, People v. Lesley, 232 AD2d 259 [First Dept. 1996], app. dism., 89 NY2d 868 [1996], where notification by Baltimore police concerning defendant's incarceration in that City was sent to the New York State Division of Parole. This was held sufficient notice to the People so that defendant's location was no longer unknown requiring due diligence to produce him).

Presumably, the police in Westchester County would have been alerted through NYSID to the existence of defendant's Bronx County warrant when they fingerprinted him after his burglary arrest. They should have then notified either the People or the Warrant Section of the New York City Police Department (hereinafter NYCPD) who in turn also should have notified the People (see, People v. McLaurin, 38 NY2d 123, 126).

The People do not dispute the claim that the defendant has been continuously incarcerated since his subsequent arrest. This would appear to make them responsible for the entire 244 [FN1] day period between defendant's arrest on November 14, 2003 and his production on July 15, 2004. Nonetheless, there are several reason why defendant's motion cannot be summarily granted.

A motion to dismiss an indictment premised upon a violation of a defendant's right to a speedy trial must contain sworn allegations of fact based upon either personal knowledge or upon information and belief provided the sources for the latter grounds are identified (see, C.P.L. §210.20[1][g]; C.P.L. §210.45[1]).

The defense motion does not satisfy either of the above requirements. It is not based upon personal knowledge of all the facts alleged. It does not identify the specific "records, independent investigation or conversations" mentioned in the affirmation which serve as the basis for its allegations (see, C.P.L. §210.45[4][b]). It also does not provide any documentary proof tending to support those allegations (see, C.P.L. §210.45[1]).

There are, for instance, no records of any communications between the Westchester County authorities and either the NYCPD or People regarding defendant's subsequent incarceration. Absent also is any updated NYSID sheet demonstrating what, if any, information concerning the Bronx County warrant was available to the Westchester County police, or what name, NYSID number and other pedigree information was generated by the burglary arrest. [*4]Moreover, the People's response does not concede that they knew on November 14, 2003 or shortly thereafter that defendant was now incarcerated (see, C.P.L. §210.45[4][c]).

The rational expressed earlier of imputing knowledge by the police to the People would only be relevant if the Westchester County authorities knew or should have known that the person they had in custody was the same person sought in the Bronx County warrant (see, People v. McLaurin, 38 NY2d 123, 126, noting "prefatorily, of course, knowledge of the defendant's whereabouts by law enforcement authorities must be established").

A warrant check by the Westchester County authorities may not have discovered the Bronx County warrant if the defendant gave a different name or other pedigree information when he was arrested for the burglary in Westchester County (see, People v. Sigismundi, 89 NY2d 437 [1997], rev. 220 AD2d 382[1995], applying rational in dissenting opinion by Sullivan, J.P., excusing lack of due diligence where defendant sought to avoid detection through use of false pedigree information; accord People v. Torres, 88 NY2d 928 [1996]; and People v. Luperon, 85 NY2d 71, 80 n3; compare People v. Ramos, 230 AD2d 630 [First Dept. 1996], relying on People v. McLaurin, 38 NY2d 123, 126, where knowledge by police of defendant's whereabouts was imputed to the People since defendant, incarcerated in New York State under the same name and NYSID number, did nothing to avoid detection).

Unlike the burden placed on the prosecution in pre-readiness delay to demonstrate that a given period is excludable after a defendant shows a delay greater than six months, the defendant generally has the burden to demonstrate that "any post-readiness adjournments occurred under circumstances that should be charged to the People" (see, People v. Cortes, 80 NY2d 201, 210 [1992]).

Here, the unquestionable documentary proof necessary to decide the factual dispute between the parties as to when the People first knew about defendant's incarceration is lacking (see, C.P.L. §210.45[5][c]). When the papers submitted by the parties show that there is a factual dispute, there must be a hearing (see, People v. Santos, 68 NY2d 859, 861 [1986]; People v. Gruden, 42 NY2d 214, 217 [1977]).

The court grants defendant's alternative request and orders a due diligence hearing to determine the date on which the People can first be charged with knowledge of defendant's incarceration in Westchester County, and what responsibility, if any, they have for the period from the date of his arrest in Westchester County on November 14, 2003 until his production in Bronx County on July 15, 2004.

This will allow both parties an opportunity to provide the court with evidence in the form of testimony or documentary proof concerning any relevant information possessed by the Westchester County police, and what if any notifications were made between them and the NYCPD or People (see, People v. Delacruz, 184 Misc2d 653; 711 NYS2d 674, where "WOLF REPORTS"[FN2] from the NYCPD's Warrant Section detailed the communications between that office and the People regarding defendant's subsequent incarceration in another state after issuance of a bench warrant).

Defendant may renew his motion for release or dismissal before the court where the matter is then pending if the outcome of the hearing warrants it. [*5]

This opinion shall constitute the decision and order of this court.

________________________________

Nicholas Iacovetta, AJSC

DATED:February 18, 2005

Bronx, New York Footnotes

Footnote 1:February 2004 was a leap year. Hence the additional day.

Footnote 2:The acronym stands for Warrant On Line File.