People v Lee

[*1] People v Lee 2007 NY Slip Op 51023(U) [15 Misc 3d 1137(A)] Decided on May 22, 2007 Criminal Court Of The City Of New York, New York County Weinberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 22, 2007
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Gilrye Lee, Defendant.



2006CN000332

Richard M. Weinberg, J.

The defendant is charged with Prostitution, a B misdemeanor (Penal Law §230.00). She has brought a motion to dismiss pursuant to CPL § 30.30, alleging that more than sixty days of chargeable time have elapsed since the commencement of this action. In a prior CPL §30.30 decision, dated January 9, 2007, this Court found that the People were charged with 52 days. The defendant now argues that the two week adjournment requested by the People on February 13, 2007 is not excludable. It is the People's burden to establish which contested periods of time are excludable. (People v Berkowitz, 50 NY2d 333).

This case was scheduled to go to trial on February 13, 2007. The People had previously announced that they were ready. On February 13, 2007, the People requested a two week adjournment because the wife of a police witness had given birth prematurely to twins during the preceding weekend, the babies were in intensive care at the hospital and, as a result of this medical crisis, the officer would be unavailable for the next two weeks. The Court adjourned the case for trial. On the adjourned date the People were ready for trial.

This two week adjournment, necessitated by the officer's family emergency, is excluded pursuant to CPL § 30.30 (4) (g) as a period of delay caused by an exceptional circumstance. Although the calendar Assistant referred to the witness as the arresting officer, the witness was actually the undercover officer. As such, the witness was crucial to the People's case, the People were diligent in reporting to the Court the circumstances of the witness's unavailability and there were reasonable grounds to believe that the witness would be available within a relatively short period of time.

Contrary to the defendant's argument, witness unavailability due to medical reasons is not limited to situations where the witness is the patient. In People v Rodriguez (212 AD2d 368 [1st Dept 1995], lv denied 85 NY2d 913 [1995]), the complainant's unavailability due, in part, to his father's illness was recognized as an exceptional circumstance. In People v Harden (6 AD3d 181 [*2][1st Dept 2004]), the victim's absence due to his mother's hospitalization in Pakistan constituted an exceptional circumstance. In People v Chavis (238 AD2d 349 [2nd Dept 1997], rev on other grnds, 91 NY2d 500 [1998]), an essential police witness was unavailable because he was needed at home as the sole care-giver of his cancer-stricken father. This was held to be an exceptional circumstance under the statute. Other exceptional circumstances recognized in case law include the hospitalization of a witness's daughter with a potentially fatal illness (People v Familia-Morel, 151 Misc 2d 55 [1991]), the sudden death of a daughter in an automobile accident (People v Valentin, 184 Misc 2d 942 [2000]), an undercover officer's "family crisis and its tragic conclusion" (People v Lopez, 2 AD3d 234 [1st Dept 2003]) and a witness being out of the country to attend his brother's funeral (People v Kato, 178 AD2d 381 [2nd Dept 1991]).

The circumstances surrounding the unavailability of the witness in this case are well within the parameters of what has been recognized as "exceptional" under the statute. The People have met their burden of establishing that their witness was "unavailable" within the meaning of CPL § 30.30 (4)(g). Since the People have shown the excludability of the contested adjournment, the time charged to them remains at 52 days. Accordingly, the defendant's motion to dismiss is denied.

This constitutes the decision and order of the Court.

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New York, New YorkJudge of the Criminal Court