People v Murray

[*1] People v Murray 2008 NY Slip Op 52344(U) [21 Misc 3d 1134(A)] Decided on November 20, 2008 Supreme Court, Bronx County Fabrizio, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2008
Supreme Court, Bronx County

The People of the State of New York

against

Manuel Murray, Defendant.



34246C-2007



APPEARANCES:

For Defendant:

Michael Raskin

The Legal Aid Society

1020 Grand Concourse

Bronx, New York 10451

For the People:

Benjamin Fleigel

Office of the District Attorney

Bronx County

198 East 161st Street

Bronx, New York 10451

Ralph A. Fabrizio, J.

The issue before the Court is whether the People's in court statement of trial readiness can be considered valid when, before the pre-trial hearing begins, they make a request for an 11 day adjournment. The defendant, Manuel Murray, is charged with Possession of Ammunition (AC § 10-131(i)(3)). He has moved for a second time for an order dismissing the accusatory instrument based on a claim that the People have exceeded their time to answer ready pursuant to CPL 30.30. In a prior ruling in this case, dated October 9, 2008, the Court found that the People were charged with 86 days of time, and denied the motion. The case was adjourned for pretrial hearings and trial to a date specifically requested by the People, October 16, 2008.

On that date, the People stated ready for trial in the calendar part, and the case was sent to [*2]a trial part. Once there, the People informed the trial judge that one of their witnesses, the police officer who had arrested the defendant and elicited an inculpatory statement, was available to begin testimony for the hearing that afternoon, but would be unavailable for the next 11 days, and asked the Court to adjourn the case until October 27, 2008. At the same time, the People maintained that they were in fact "ready" for trial. That judge concluded, without any argument from the People, that since the witness could not even complete the testimony necessary for the hearing on that date, the People were not ready for trial, and adjourned the case to the date the People requested. The defense argues that the People were not ready for trial that day, and that this 11 day period should be charged to the People. The People take the position that they met the legal requirements for trial readiness, and that "the court chose not to try the case on that day." The motion to dismiss is granted.

The People cite no case supporting their position that they were in fact ready for trial even though a witness they acknowledge would be necessary to prove their case was unavailable to complete even his hearing testimony for an extended period of time. The People are considered to be ready for trial when they have removed all impediments to the case being tried, and are able to try the case in a reasonably expeditious manner. See People v. England, 84 NY2d 1, 4(1994); People v. Kendzia, 64 NY2d 331, 337 (1985); People v. Dushain, 247 AD2d 234, 235 - 36 (1st Dept. 1998). They need not "have the ability to produce their witnesses instantaneously in order for a statement of readiness to be valid." Dushain, 247 AD2d at 236. It is anticipated, however, that all witness be available to come to court and testify "on at most a few days notice." Id. Once a trial has commenced, of course, and a situation arises which would necessitate the People to request a continuance in order to call a witness who has become unavailable, a decision granting such an application would be purely a discretionary one, See People v. Spears, 64 NY2d 698, 699- 700 (1984), and such a continuance would have no CPL 30.30 implications.

This is not a case in which the People requested a continuance after a hearing, or trial, had commenced. The People answered ready for trial when the case was called in the calendar part, a trial part was secured in an expeditious manner, and the case was sent to a judge for hearing and trial. The People indicated that all witnesses were present when the case was called in the calendar part, and never indicated in any way that any of their witnesses would have trouble appearing on consecutive days for a hearing and trial. When the case was called in the trial part, the People turned over some late discovery, and the prosecutor immediately told the judge, "I was told that the arresting officer, the one testifying in this hearing today, that he's going to be unavailable next week . . . I just found out that he's also unavailable tomorrow. The rest of my witnesses are available tomorrow. He's going to testify in majority (sic) to statements that the defendant made." The late discovery included a written statement made by the defendant, and there was a discussion about the scope of the statement notice given by the People, which, of course, would effect the scope of the hearing.

After an off the record bench conference, the judge stated that the case could not go forward that day "considering the limitations of the witness, and so I am going to send the matter back to where it came from." The prosecutor asked the judge if it were "possible to schedule a date in this court part? I mean, we have witnesses here, we can schedule the witnesses for a week from Monday and start hearings and trial from then." The judge declined to keep the case, recognizing that the practice would be to adjourn the case back to the calendar part, since this [*3]judge was now available to actually try another case. The prosecutor then asked, "your Honor, if possible, could you adjourn it back to [the calendar part] for the date my witness can get back?" and the judge replied, "Absolutely." The case was adjourned to the calendar part for Monday, October 27, 2008.

The prosecutor then said that "the People are ready to proceed today. It looks infeasible in terms of the Court calendar, so if the case has to be adjourned, I'd like it to be adjourned to October 27." The judge replied, "Well, if we were to go forward today, we would not be able to finish the testimony of this witness. We don't have enough time for direct and cross, so he's not available tomorrow and all of next week, and so the People are asking the Court to accommodate this schedule, which includes a six working-day gap, which is not reasonable. So, I don't agree that the People are ready." The People did not respond to the judge's statement.

The People argue that they were ready for trial, and that this period of time should be excluded from CPL 30.30 calculations based on "court congestion." The record supports no such finding. The case was actually sent out to a judge for pretrial hearings and a trial. There was a judge ready, willing and able to hear the case. The People made no record before the case was sent out to be tried that a necessary witness would be unavailable to testify the next day, let alone for an 11 day period. According to the People, not only was this witness necessary, in their estimation, to prove the charge at trial, but the witness was indispensable to their ability to prevail at the pretrial Huntley/Dunaway hearing, since the witness who was unavailable was not only the arresting officer, but was also the witness who elicited the defendant's statement. The record is clear that the People would not have even been able to complete the pretrial hearings in this case for 11 days, because the People were not going to make this witness available to the trial judge to complete his hearing testimony for that period of time. As the trial judge said, this witness could not have been expected even to complete his direct and cross-examination at a hearing that afternoon, and the People tacitly, if not explicitly, agreed because they asked the judge to adjourn the case for 11 days in order to "begin" the hearing and proceed to trial.

The People's inability to complete pretrial hearings is a well-recognized impediment to a case going to trial. See People v. McKenna, 76 NY2d 59, 64 (1985); People v. Simpkins, 193 Misc 2d 148, 151 (Crim. Ct. Bronx County 2001), aff'd, 193 Misc 2d 447 (App. Term. 1st Dept. 2002), lv to appeal denied, 99 NY2d 583 (2003). Here, the People had ample time to prepare for the hearings, which were ordered on February 13, 2008, some 10 months earlier. Moreover, they were advised in court on the record on October 9, 2008 that they had only 4 additional days within which to state ready for trial, and they were given a choice to pick any day that they wanted for trial. They picked October 16, 2008 as the date for trial. But, as it turned out, for reasons they never even attempted to explain to the trial judge, a necessary police witness was "unavailable" to testify for the next eleven days. And, in this case, the witness was not even going to be able to complete his hearing testimony that day.

Thus, the People's statement that they were in fact "ready" to proceed to trial on October 16, 2008 is without merit. At most, they were able to start a hearing, but not complete it. That is, of course, tantamount to not being ready for trial at all. Where the prosecution is unable to do more than commence a suppression hearing, and that inability leads to an adjournment of the case, that adjournment is "the exclusive responsibility of the People and requires the assessment of time for that post-readiness delay." Simpkins, 193 Misc 2d at 152 - 155. [*4]

The People further argue that since the case was not sent out for trial until the afternoon hours, they should not bear the responsibility for the adjournment. Cases are, of course, sent out for trial throughout the day. And, in fact, it is a common practice in this county, for a variety of reasons, for cases to be called in the morning and for assistant district attorneys to request a second call in the afternoon to begin a trial. The People allege that this case was not called until "five and one half hours after the case was scheduled to be called," and that both the defense attorney and the Court should actually shoulder the responsibility for the People's inability to try the case that day. While it is certainly this Court's preference to call all cases on its calendar as close to 9:30 a.m. as possible, there is nothing in the record to support the People's argument that this case was itself given some preference for a call at 9:30 a.m., let alone that the Court was somehow aware that the People could only really be ready to go to trial at 9:30 a.m. that day, and no later. If the People were in such dire straits, it would be appropriate for them to bring this fact to the Court's attention. But, the record discloses, beyond cavil, that the prosecutor was not aware of the fact that the witness was not going to be available, for whatever reason, for an 11 day period at any time before the case was actually before the trial judge, in the afternoon. The prosecutor said, to the trial judge, in no uncertain terms, that he "just found out [the police witness is] also unavailable tomorrow." The prosecutor who answered "ready" for trial in the calendar part that afternoon did so unequivocally. To now suggest that the prosecutor knew at 9:30 a.m. that the police witness could not come in the next day, and the next week, to testify, and then attempt to argue that the reason for the adjournment is due to "the court's congested calendar," and not the extended unavailability of their own witness, is baffling.

In any event, when the People state ready for trial, whether in the morning, or in the afternoon of a court day, it is assumed that the statement is one of present readiness to proceed that day, and for all of that day, and that they will not be sent out to a trial judge for purposes of asking for an adjournment. They claim, without any basis in the record to support this claim, that if the case had been called in the morning, and if the case had been sent out for trial in the morning, then not only would they have been able to complete the hearing, but they also would have been able to have the "unavailable" witness complete his trial testimony all in the same day. Of course, we will never know if that would have been true, because it never happened that way. They did state ready for trial on the record, in open court, when the case was actually called after the lunch break. Moreover, their argument amounts to nothing more than unsupported speculation. They needed to be ready for trial that day, and they needed to complete the hearing before the case could be tried. The defendant, of course, always reserves the right to choose to testify at a suppression hearing, and to call any witnesses, and that precludes any finding that the People's prophesy is a valid one. Moreover, defense counsel raised a serious issue after the People turned over very late discovery to him when the case reached the trial judge. It seemed that counsel claimed that there were statements alleged to have been made by the defendant contained in the discovery, including a written statement by the defendant, that counsel claimed had never been provided to him in the 17 months the case was pending. Thus, the scope of the hearing itself had to be settled before testimony could even begin. Put simply, as with many cases, issues arose before the trial judge that needed to be addressed before testimony could be taken, which seriously calls into question the validity of the People's optimistic time line.

Thus, the record does not support a finding that the People were ready to proceed to trial [*5]on October 16, 2008, and does support a finding that they are responsible for the ensuing adjournment. They were, at most, ready to begin a hearing. They made it very clear to the trial judge that they had no intention of securing the police witness's presence the next day, or at any time during the next 11 days. There is nothing to indicate that they tried to issue a subpoena to the witness to compel his appearance. They made no record that would support a finding that "extraordinary circumstances" existed for the unavailability of the witness that would allow a finding there was "good cause" to exclude this period from CPL 30.30 calculations, nor do they make this argument now. They simply want this Court to find, as a matter of law in this case, that a valid statement of readiness for trial includes the factual scenario herein namely, that trial readiness means that the People can begin a hearing, request an 11 day adjournment, and

conclude their direct case at the hearing, and then go to trial. No case yet recognizes this to be readiness for trial, and this Court believes that, to do so, would extend the concept of trial readiness to a situation never even remotely considered by the Legislature.

The defendant filed the current motion on October 22, 2008, thereby "stopping the clock" once again on that day. As noted in the October 9, 2008 decision, this is a "post-readiness" situation. The People are therefore charged with the period between October 16, 2008 and October 22, 2008, a total of 6 days. This period, combined with the 86 days previously found charged to the People, brings the total time charged to 92 days, in excess of the 90 days they had to bring this case to trial. Therefore, the motion to dismiss the case for violating the defendant's right under CPL 30.30 is granted.

The foregoing constitutes the decision and order of the Court.

Dated:November 20, 2008____________________________

Bronx, New YorkRALPH FABRIZIO

A.J.S.C.