People v Braithwaite

[*1] People v Braithwaite 2010 NY Slip Op 51479(U) [28 Misc 3d 1224(A)] Decided on May 4, 2010 Criminal Court Of The City Of New York, Kings County Cohen, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 4, 2010
Criminal Court of the City of New York, Kings County

The People of the State of New York
against
Alvin Braithwaite, Defendant.



2008KN040076



FOR THE MOTION

Richard J. Korn, Esq.

Attorney for Defendant

31 Smith Street

Brooklyn, NY 11201

(718) 858-2898

OPPOSED

Hon. Charles J. Hynes

District Attorney, Kings County

By: Jacqueline Kagan, Esq.

Assist. D.A.,

Of Counsel for the People

Renaissance Plaza

350 Jay Street

Brooklyn, NY 11201-2908

(718) 250-3055

Devin P. Cohen, J.

Defendant is currently charged with Sexual Abuse in the Third Degree (PL § 130.55), Sexual Abuse in the Second Degree (PL § 130.60[2]), Harassment in the Second Degree, (PL §

240.26[1]), and Endangering the Welfare of a Child (PL § 260.10[1]), the top count being a class A misdemeanor. Defendant moves to dismiss the accusatory instrument pursuant to CPL § 30.30. After submissions and pursuant to this court's prior order of February 9, 2010, a hearing was held on March 26, 2010. After review of all papers and exhibits submitted and after that hearing, the court finds as follows:

The Parties' Contentions[*2]

Defendant argues that the People have failed to demonstrate that the detective on the case was unable to testify for medical reasons on four consecutive adjourn dates from February 6, 2009 to July 16, 2009. Accordingly, defendant asserts that the People should be charged with as much as 126 days of post-readiness delay (as of the initial making of this motion).

The People contend they adequately established that the detective on the case was unable to testify for medical reasons on the adjourn dates in question. The People further argue that their detective's unavailability qualifies as an "exceptional circumstance" under CPL § 30.30(4)(g) and that the period from February 6, 2009 to July 16, 2009 should be excluded from the speedy trial calculus. Thus, the People argue, they should only be charged with 34 days of delay (as of the initial making of this motion).

After review of the defendant's motion and the People's responsive submissions, the court scheduled a hearing related to the motion (Devin P. Cohen, J., interim order of Feb. 2, 2010). On March 26, 2010, the court conducted a hearing on the issue of the detective's work and physical status during the time period at issue, and whether that qualified as an "exceptional circumstance" the duration of which should be excluded pursuant to CPL § 30.30(4)(g). The court's determinations, based on the hearing, the motion and opposition papers, as well as the People's supplemental submissions, are set forth below.

Analysis

Pursuant to CPL § 30.30(1), the applicable speedy trial time is determined based on the highest charge in the accusatory instrument. (CPL § 30.30[1]; People v Cooper, 98 NY2d 541, 546 [2002]). Where the highest charge against a defendant is a class A misdemeanor, the People are ordinarily required to state their readiness for trial within 90 days of commencing the criminal action (CPL § 30.30[1][b]; PL § 70.15). In this case, however, the original accusatory instrument also charged defendant with Sexual Abuse in the First Degree (PL § 130.65), a felony. CPL § 30.30(5)(c), requires that "[w]here a felony complaint is replaced with a new accusatory instrument charging a class A misdemeanor, the People must be ready for trial within 90 days from the filing of the new instrument or six months from the filing of the felony complaint—whichever is shorter" (People v Spector, 181 Misc 2d 522, 523 [Crim Ct, New York County 1999], affd 731 NYS2d 331 [NY Sup App Term 2001], lv denied, 96 NY2d 942 [2001]).

In this case, the felony charge was dismissed and the charges reduced on June 4, 2008, four days from the date when the felony complaint was filed. Here, the 90 day period running from the filing of the misdemeanor complaint is shorter than the six month (184 day) period running from the felony arraignment. Thus, pursuant to CPL § 30.30(5)(c), the speedy trial clock was reset when the misdemeanor complaint was filed, and the People had 90 days from June 4, 2008 to be ready for trial.

To prevail in the instant motion, defendant must demonstrate a delay in excess of 90 days from the filing of the misdemeanor complaint (see People v Santos,68 NY2d 859, 861 [1986]; People v Khachiyan, 194 Misc 2d 161, 166 [Crim Ct, Kings County 2002]). Once defendant has made such a showing, the burden shifts to the People to establish that certain periods within that time should be excluded. (see Santos, at 861; Khachiyan, at 166).

The Court of Appeals has held that "ready for trial" within the meaning of CPL § 30.30(1) requires both "a communication of readiness which appears in the trial court's record" and that the People "make the statement of readiness when [they] are, in fact, ready to proceed" [*3](People v Kendzia, 63 NY2d 331 [1985]). The question of whether the People are "in fact ready to proceed" involves an "inquiry [as to] whether the People have done all that is required of them to bring the case to the point where it may be tried." (People v England, 84 NY2d 1, 4 [1994]).

Where the court grants adjournments at the People's request after the People have announced ready for trial, the burden rests upon the People to clarify the basis for the adjournment on the record. (People v Liotta, 79 NY2d 841 [1992]). The purpose of this rule is to enable the court to properly determine chargeable time on a subsequent CPL § 30.30 motion. (Id. at 841). In general, adjournments requested or initiated by the defense are excluded. (CPL § 30.30[4][b]; see People v Klaus, 104 AD2d 566 [2d Dept 1984]; People v Jenkins, 286 AD2d 634 [1st Dept 2001], lv denied 97 NY2d 683 [2001]).

CPL § 30.30(4)(g) states, in relevant part:

"In computing the time within which the people must be ready for trial...the following periods must be excluded ... other periods of delay occasioned by exceptional circumstances, including but not limited to, the period of delay resulting from a continuance granted at the request of a district attorney if (i) the continuance is granted because of the unavailability of evidence material to the people's case, when the district attorney has exercised reasonable diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period ..."

The Court of Appeals has interpreted "exceptional circumstances" to mean that "where the People are truly unable to take necessary steps to prepare for trial and announce readiness due to circumstances which are beyond their control, the CPL § 30.30 clock must stop temporarily while those circumstances persist." (People v Smietana, 98 NY2d 336, 341 [2002]).

The court finds that a total of 701 days have elapsed from the filing of the misdemeanor complaint, to date. Thus, the burden has shifted to the People to demonstrate that certain periods should be excluded from the speedy trial calculus.

Calculating Includable and Excludable Time [FN1]

The Period from May 30, 2008 to June 4, 2008

Defendant was arraigned on the felony complaint on May 30, 2008. The case was adjourned to June 4, 2008 for grand jury action. On June 4, 2008 in AP1F, the People dismissed the felony charges, reducing the case to a misdemeanor and filed a superseding information with the court. As previously discussed, the four day period from the felony arraignment to the reduction of the charges and filing of the misdemeanor complaint is excluded from the speedy trial calculus by operation of law (see CPL § 30.30[5][c]). Pursuant to CPL § 30.30(5)(c), on June 4, 2008, the speedy trial clock was reset and the People had 90 days to be ready for trial. Accordingly, as of June 4, 2008, the People are charged with 0 days of delay.

The Period from June 4, 2008 to June 10, 2008

On June 4, 2008, the People served and filed a copy of the superseding information with the court. The case was adjourned to June 10, 2008 for open file discovery (OFD) and, it appears, for the People to serve the superseding information on defense counsel. The People [*4]concede that as of June 10, 2008 they should be charged with 6 days of post-readiness delay.

The Period from June 10, 2008 to June 23, 2008

On June 10, 2008, the People served and filed a modified superseding information with the court and on defense counsel and announced ready for trial. The case was then adjourned to June 23, 2008 for discovery by stipulation (DBS). Pursuant to CPL § 30.30(4)(a), adjournments for DBS are excluded from speedy trial calculations, irrespective of the People's readiness for trial. (see People v Caussade, 162 AD2d 4, 8 [2d Dept] lv denied, 76 NY2d 984 [1990]; People v Lucas, 25 Misc 3d 1213[A] [Crim Ct, Kings County 2009]). The court notes that defendant does not argue in his moving papers that the people should be charged with any time for this adjournment. Accordingly, as of June 23, 2008, the People are charged with 6 days of delay.

The Period from June 23, 2008 to July 28, 2008

On June 23, 2008, defense counsel was not present and the People filed DBS with the court. The case was adjourned to July 28, 2008 for defense counsel to appear. The People are not charged with any period where defense counsel fails to appear. (CPL § 30.30[4][f]; see People v Seabrook, 126 AD2d 583 [2d Dept 1987]). The defendant does not suggest that the People should be charged with any time for this adjournment. Accordingly, as of July 28, 2008, the People are charged with 6 days of delay.

The Period from July 28, 2008 to October 22, 2008

On July 28, 2008, the People served further discovery on defense counsel and the court adjourned the case to October 22, 2008 for hearings and trial. The People are not charged with this adjournment because defense counsel was absent on the prior adjourn date and the case was adjourned exclusively for defense counsel to appear. Furthermore, the adjournment from discovery to hearings or trial is "a court adjournment for scheduling purposes" established to ease court congestion and, thus, is not chargeable to the People. (see People v Goss, 87 NY2d 792 [1996]; People v Cortes, 80 NY2d 201, 210 [1992] [post-readiness delay attributable to court not chargeable]; see People v Smalls, 163 Misc 2d 369, 371-72 [Crim Ct, Kings County 1994]). The defendant does not argue in his moving papers that the People should be charged with this adjournment. Thus, as of October 22, 2008 the People are charged with 6 days of delay.

The Period from October 22, 2008 to December 5, 2008

On October 22, 2008, the People were not ready for hearings and trial because their witness was unavailable. The People requested a 2 week adjournment. The case was adjourned to December 5, 2008 for hearings and trial. After announcing ready, the People are only charged with the time they requested. (see People v Bruno, 300 AD2d 93, 95 [1st Dept 2002], lv denied, 100 NY2d 641 [2003]; People v Anderson, 252 AD2d 399 [1st Dept] appeal denied 92 NY2d 1027 [1998]). The People are charged with the 2 weeks they requested. Thus, as of December 5, 2008, the People are charged with 20 days of delay.

The Period from December 5, 2008 to February 6, 2009

On December 5, 2008 the People announced ready for trial. Defense counsel announced not ready because he was still investigating the case. The People are not charged with time resulting from an adjournment requested by defense counsel (CPL § 30.30[4][b]; see Jenkins, supra, 286 AD2d 634). Thus, as of February 6, 2009, the People are charged with 20 days of delay. [*5]

The Period from February 6, 2009 to July 16, 2009 [FN2]

On February 6, 2009, the People announced not ready for trial because the arresting detective (Detective S.) was unavailable due to a back injury. The People requested the case be adjourned to March 6, 2009. The court adjourned the case to March 20, 2009 for hearings. Defendant argues that the People should be charged with the four weeks they requested for this adjournment and for the entire period from March 20, 2009 to July 16, 2009. The People argue that they should not be charged any time for this period because the injury that occasioned the detective's unavailability beginning on the February 6, 2009 court date and ending on the July 16, 2009 court date amounted to an "exceptional circumstance" warranting exclusion under CPL § 30.30(4)(g). Defendant argues that the People have failed to demonstrate an "exceptional circumstance" because they fail to prove that the detective was not just unfit to return to work but also unable to appear in court for medical reasons.

First, the language of CPL § 30.30(4)(g) indicates that a formal continuance need not be granted in order for the People to invoke the "exceptional circumstance" exclusion. (People v Goodman, 41 NY2d 888, 889 [1977]). Thus, although, the People failed to request the exclusion at the February 6, 2009 court date, the court may exclude the time where the People adequately demonstrate that the exceptional circumstance existed during the period in question. (Id.)

In order to qualify for the exceptional circumstance exclusion, the People must make a three-part showing of unavailability of the evidence, due diligence and the reasonable expectation of its future availability. (see People v Price, 61 AD3d 127 [2d Dept 2009]; People v Zirpola, 57 NY2d 706 [1982]). "The unavailability of a principal witness falls within the exceptional circumstance' exclusion of CPL § 30.30(4)(g)." (People v McLeod, 281 AD2d 325, 327 [1st Dept 2001]). The People served notice under CPL § 710.30(1)(a) asserting that defendant made inculpatory statements to Detective S. Detective S. is a principal witness in this case.

Under CPL § 30.30(4)(g), the prosecutor's representations are typically regarded as sufficient, in the first instance, to establish the witness' unavailability for medical reasons. (see e.g. People v Alcequir, 15 AD3d 162, 163 [1st Dept, appeal denied, 4 NY3d 851 [2005]; People v Hernandez, 268 AD2d 344, 344 [1st Dept], appeal denied, 95 NY2d 853 [2000]). In the event of a factual dispute, however, the People bear the burden of proving the witness is unavailable. (see e.g. People v Martinez, 268 AD2d 354 [1st Dept 2000] appeal denied, 94 NY2d 922 [2000]).

In their response to defendant's speedy trial motion, the People submitted copies of three unsworn letters pertaining to Detective S.'s medical status and resulting unavailability. The first letter, dated April 14, 2009, purports to be from Detective S.'s supervisor, Lieutenant Robert Johnson, but is signed by Sergeant Stephen Giuntini. The letter states that the detective reported sick on January 27, 2009 and remained out until April 14, 2009, when he returned to work on a limited basis. The second letter, dated April 1, 2009 from a New York City Police Department Surgeon, Dr. Stephen Hornyak, consists only of a boilerplate form stating that in the doctor's [*6]opinion, Detective S. "cannot/should not be required to make a court appearance or department hearing on the date(s) in question." Dr. Hornyak's letter fails to give any indication of the date or dates on which the doctor intended Detective S. to be restricted from testifying, nor does it describe the nature of the detective's injury. The third letter, dated June 9, 2009, again purports to be from Lieutenant Robert Johnson but is signed by Sergeant Giuntini. The letter indicates that while the detective returned to work on April 14, 2009, he went back on sick leave again for emergency back surgery on April 28, 2009 and he was not expected to return to limited duty until mid-July. The third letter further indicates that either Sergeant Giuntini or Lieutenant Johnson had confirmed with the Police Department Medical Division that Detective S. was still medically unfit to appear in court.

The Hearing

Based on the inadequacy of the proof and the lack of proof in evidentiary form submitted by the People to establish Detective S.'s medical unavailability, the court issued an interim order setting the case down for a hearing on the issue on March 5, 2010. The People were not ready for the hearing on March 5, 2010. The People requested March 9, 2010, and the court adjourned the case to March 26, 2010. The People are charged with 4 days for that adjournment. (People v Bruno, 300 AD2d 93, 95 [1st Dept 2002], lv denied, 100 NY2d 641 [2003]). On March 26, 2010, the court conducted a hearing to clarify the nature and extent of Detective S.'s unavailability during the dates in question. At that hearing Detective S. testified that he underwent lower back surgery on January 27, 2009. The detective testified that he spent two days in the hospital and after his release was not only unable to drive but was severely limited in his ability to walk, sit and stand. The detective further testified that from January until April his mobility and function gradually improved and he returned to work on limited duty on April 14, 2009. However, on April 28, 2009, he collapsed and the next day returned to the hospital for emergency back surgery. According to the detective his personal surgeon advised him to stay out of work and he visited the Police Department surgeon once a week until he returned to work.

In addition to Detective S.'s testimony, the People submitted two additional affirmations from the Police Department surgeon Doctor Hornyak. The first is dated March 16, 2010 and states that Detective S. was out of work due to a back injury from January 27, 2009 to April 14, 2009 and again from April 29, 2009 to July 12, 2009. The affirmation further states that the doctor advised the detective that he was not medically cleared to travel to court or report for court appearances during those periods due to his physical condition. The second affirmation, dated March 29, 2010, states that while the doctor does not remember the specific restrictions he gave to Detective S., based on the detective's medical condition during the two periods in question he would not have permitted anybody to travel to court.

Based on the testimony of Detective S. and the other evidence presented, the court finds that the People have adequately demonstrated that, from February 6, 2009 to April 14, 2009, and from April 28, 2009 to July 16, 2009, the arresting detective's back injury and resulting inability to testify qualified as an "exceptional circumstance" under CPL § 30.30(4)(g).

The People need not show that a witness is not ambulatory in order to obtain exclusion of time under CPL § 30.30(4)(g). (People v Martinez, 268 AD2d at 354; see, e.g. People v McLeod, 281 AD2d 325, 327 [1st Dept 2001] [exclusion where officer wore "large cumbersome cast" on arm] appeal denied, 96 NY2d 904 [2001]; People v Luperon, 196 Misc 2d 154, 157 [Sup Ct, [*7]New York County 2003] [exclusion permitted where detective on "limited capacity duty" but not yet medically fit to testify in opinion of police surgeon]. Furthermore, with respect to the unavailability of a law enforcement officer, the "due diligence" requirement does not require that the prosecutor communicate directly with the officer rather than relying on communications from the officer's chain of command. (see Luperon, supra, at 157).

Due diligence under CPL § 30.30(4)(g) typically requires, at a minimum, that the People keep themselves and the court apprised, if possible, of the "expected return date" of the witness (People v Womack, 229 AD2d 304, 304-05 [1st Dept 1996], aff'd on opinion below, 90 NY2d 974 [1997]). Neither the affirmations nor the hearing testimony adequately established that Detective S. remained unable to testify during the two weeks in which he returned to work. Furthermore, the People fail to indicate that there was any protocol or notification procedure set up for alerting the People, or the court, as to when the detective returned to work or would be able to testify. The People do not adequatelydemonstrate that the period from April 14, 2009 to April 28, 2009, during which Detective S. had returned to work, should be excluded from the speedy trial calculus. Thus, the court finds that the People should be charged with the 14 days from April 14, 2009 to April 28, 2009.

Accordingly, as of July 16, 2009, the People are charged with a total of 34 days of delay.

The Period from July 16, 2009 to September 25, 2009

On July 16, 2009, the People announced ready for trial. The court notes that the fact that Detective S. returned from medical leave and was available to testify in mid-July, bolsters the People's claim that the period of his absence should be excluded under CPL § 30.30(4)(g) since his testimony did become available in "a reasonable time." The court adjourned the case to September 25, 2009 for hearings. Defendant concedes that no time should be charged to the People for this adjournment. Thus, as of September 25, 2009, the People are charged with 34 days of delay.

The Period from September 25, 2009 to November 17, 2009

On September 25, 2009, the People stated not ready because Detective S. was on United Nations detail and was not available to testify. The People requested two weeks. The People are charged with the 14 days they requested. Thus, as of November 17, 2009, the People are charged with 48 days of delay.

The Period from November 17, 2009 to January 13, 2010

On November 17, 2009, the defendant served and filed the instant motion to dismiss pursuant to CPL § 30.30. The court set the People's reply date for December 1, 2009, and defendant's response for December 14, 2009. The case was then adjourned to January 13, 2010 for the court's decision. The People are not charged with this period. Adjournments for motion practice are generally excludable (CPL § 30.30 [4] [a]).

The Period from January 13, 2010 to March 5, 2010

On January 13, 2010, the court ordered a hearing to gather more information in order to decide defendant's speedy trial motion. The case was adjourned for a hearing on March 5, 2010. The People are not charged with this period. (People v Cortes, 80 NY2d 201, 210 [1992] [post-readiness delays attributable to court are not chargeable]).

The Period from March 5, 2010 to March 26, 2010

On March 5, 2010, the People were not ready for the hearing. The People requested [*8]March 9, 2010. The case was adjourned to March 26, 2010 for a hearing. The People are charged with 4 days. (People v Bruno, 300 AD2d 93, 95 [1st Dept 2002], lv denied, 100 NY2d 641 [2003]). Thus, as of March 26, 2010, the People are charged with 52 days.

The Period from March 26, 2010 to Present

The case was adjourned for decision on this motion. The People are not charged with this period. Adjournments for motion practice are generally excludable (CPL § 30.30 [4] [a]).(Cortes, 80 NY2d 201, 210 [1992]).

Upon calculating all of the speedy trial time periods applicable to this matter, the court finds that 52 days are charged to the People. Accordingly, defendant's motion to dismiss for a CPL § 30.30 violation is denied.

This constitutes the decision and order of this court.

Dated:Brooklyn, New York

May 4, 2010_______________________________

DEVIN P. COHEN

J.C.C. Footnotes

Footnote 1:The description of the facts discussed in this decision are derived from the official court file, the affirmations submitted by Richard J. Korn, attorney for defendant, and A.D.A. Jacqueline Kagan.

Footnote 2:This period covers four adjournments: February 6, 2009 to March 20, 2009; March 20, 2009 to May 1, 2009; May 1 to June 12, 2009; June 12 to July 16, 2009. This entire period is discussed in the same section because the People allege this entire period is excludable under CPL § 30.30(4)(g) due to the unavailability of their arresting officer.