People v Jones

[*1] People v Jones 2011 NY Slip Op 50970(U) Decided on May 31, 2011 Criminal Court Of The City Of New York, New York County Amaker, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 31, 2011
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Edward Jones, Defendant.



2009NY095348

 

For the Motion:

The Legal Aid Society, Attorney for defendant Jones

49 Thomas Street

New York, New York 10013

Sydney O'Hagan, Esq. and Rachel Levy, Esq., Of Counsel

Opposing the Motion:

Honorable Cyrus R. Vance, Jr., District Attorney New York County

One Hogan Place

New York, New York 10013

Joseph Remy, Esq., Of Counsel

Tamiko Amaker, J.

The defendant, Edward Jones, stands charged by information with one count each of Driving While Intoxicated; Per Se (VTL § 1192.2), Driving While Intoxicated (VTL § 1192.3), and Driving While Ability Impaired (by Alcohol) (VTL § 1192.1).

By papers filed November 17, 2010, the defendant moved to dismiss the information filed against him on the ground that the People have denied him his statutory right to a speedy trial. Specifically, the defendant claimed that the People were not ready for trial within ninety days as CPL § 30.30 requires. By papers filed December 9, 2010, the People opposed the motion, claiming that no time is chargeable to them. By decision dated February 1, 2011, this court denied the defendant's motion, finding that 21 days are chargeable to the People. In reaching this determination, the time period from May 17, 2010 until September 23, 2010 was deemed excludable pursuant to CPL § 30.30(4)(g) as a result of exceptional circumstances, namely, the arresting police officer's unavailability during that time due to medical reasons. Upon the issuance of this decision, the defendant requested a hearing to address whether the People had actually met their burden of [*2]establishing exceptional circumstances.[FN1] This court granted the defendant's request, and a hearing was thereafter held on April 15, 2011 and continued on May 6, 2011. This court's amended decision in light of that hearing is as follows:

The top count charged on the information, Driving While Intoxicated; Per Se, is a misdemeanor punishable by a term of incarceration not exceeding one year. Accordingly, the People are required to be ready for trial within ninety days of the defendant's arraignment, less any excludable time. See CPL § 30.30(1)(b). The People are considered to be ready for trial when they communicate their actual readiness in open court or file a certificate of actual readiness with the court and serve a copy on the defendant's attorney. See People v Kendzia, 64 NY2d 331 (1985).

The defendant was arraigned on December 15, 2009. The court then set a schedule for the defendant to file motions and adjourned the case to March 2, 2010 for response and decision. Since this adjournment was for the purpose of filing motions, it represents excludable time. See CPL § 30.30(4)(a). [0 total days charged]

On March 2, 2010, the court administratively adjourned the matter to March 16, 2010, in light of the fire at 100 Centre Street and the resulting closure of the courthouse that day. This period is not chargeable to the People. [0 total days charged]

On March 16, 2010, the court issued a decision on the defendant's motion, and pre-trial suppression hearings were ordered to complete the motions. The case was adjourned to April 26, 2010 for pre-trial hearings to be conducted as well as for trial. Contrary to the defendant's contentions, the court finds that this period is excludable "since the time from the determination to order an evidentiary hearing, indispensable to the court's ability to decide the pending motion to suppress, until the first date scheduled for that hearing must be excluded as the period during which defendant's motion was under consideration by the court' (CPL § 30.30 [4][a]; see People v Taylor, 16 Misc 3d 339, 836 NYS2d 399 [Crim Ct, NY County 2007] . . . )." People v Williams, 19 Misc 3d 675, 677 (Crim Ct, New York County 2008); see also People v Phillips, 70 AD3d 562, 562 (1st Dept 2010); People v Sinisgalli, 28 Misc 3d 135(A), 2009 NY Slip Op 51489(U) (App Term, 1st Dept 2009). [0 total days charged]

The first three of the following four adjournments are at the crux of the defendant's motion. The People claim that all four of these adjournments are excludable because they were occasioned by exceptional circumstances pursuant to CPL § 30.30(4)(g).

On April 26, 2010, the People were not ready for trial and requested an adjournment for two weeks. The court then adjourned the matter to May 25, 2010.

On May 25, 2010, the People indicated that they were not ready for trial because the arresting officer was unavailable as a result of an injury sustained in the line of duty. At that time, the People stated that the officer was not expected to return to work for two weeks to a month. The court then adjourned the case to July 13, 2010 for hearings and trial.

On July 13, 2010, the People stated that they were not ready for trial because the officer was still unavailable due to the injury he suffered in the line of duty. They further noted that the officer [*3]was not expected to return to duty until September. The court then adjourned the matter to September 23, 2010 for hearings and trial.

On September 23, 2010, the court noted on its action sheet that the People would be ready for trial at 2:15 p.m and that the defendant was not ready because defense counsel had a doctor's appointment. The court further noted on its action sheet that the officer had returned to work and would be undergoing surgery at a later date. The case was then adjourned to November 15, 2010 for hearings and trial. During the hearing on May 6, 2011, the People explained that they could have been ready on September 23, 2010 but that they would have needed notice, pointing out that the officer was still taking medication and would be undergoing further surgery.

Pursuant to CPL § 30.30(4)(g)(i), delay resulting from a continuance granted at the request of a district attorney constitutes exceptional circumstances and therefore is excludable if "the continuance is granted because of the unavailability of evidence material to the people's case, . . . the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period." Notably, " [t]here is no precise definition of what constitutes an exceptional circumstance under CPL 30.30(4)(g),' since it is impossible to anticipate every situation that might warrant tolling of the speedy trial time period' (People v Smietana, 98 NY2d 336, 341, 746 N.Y.S.2d 678, 774 N.E.2d 743 [2002])." People v Price, 14 NY3d 61, 64 (2010). The Court of Appeals did note, however, that the legislative intent of CPL § 30.30 is to prevent prosecutorial inaction and therefore, stated that application of this exclusion is permitted "only when the People for practical reasons beyond their control cannot proceed with a legally viable prosecution." Id. (citations omitted). That is, to invoke this exception, the People must demonstrate "credible, vigorous activity" in pursuing their investigation. People v Washington, 43 NY2d 772, 774 (1977).

Here, the court finds that the officer's testimony is material to the People's case. As the People stated, it was this officer who observed the defendant's alleged actions and administered the intoxicated driver tests. Further, the information only relies on this officer's observations.

In addition, the court finds that the People have sufficiently demonstrated the officer's unavailability from May 17, 2010 to November 29, 2010. The People submitted several medical reports which show that the officer received emergency medical treatment on May 16, 2010, underwent shoulder surgery on June 15, 2010, received a spinal injection on August 31, 2010, and underwent a second shoulder surgery in October, 2010. Additionally, they provided a sworn affidavit of the officer dated April 12, 2011, wherein the officer attests that he received the abovementioned medical treatment and that, as a result of such treatment, he was unable to return to work from May 17, 2010 to August 17, 2010. The officer further states that he was on restricted desk duty from August 17, 2010 to October 4, 2010, during which time he could only perform routine tasks and was taking numerous pain medications and muscle relaxants that impeded his ability to think clearly and perceive common events. In addition, he states that he underwent a second surgery on October 5, 2010 and therefore was again out of work from that date until November 29, 2010. According to the officer, he returned again to restricted duty on November 29, 2010 and since that date has been permitted to testify as his medicine regimen has changed. The People further provided a May 21, 2010 letter from the Manhattan Traffic Task Force of the N.Y.P.D. which states that the officer was not expected to return to work for two weeks to one month as a result of an injury sustained in the line of duty. They also submitted a November 12, [*4]2010 letter from the Manhattan Traffic Task Force which states that the officer has been on sick/restricted duty since May 17, 2010. In addition, they provided the N.Y.P.D. personnel profile report of the officer which appears consistent with the time line set forth by the abovementioned documents.

Further, the People have sufficiently established that they exercised due diligence in attempting to secure the officer's testimony. See People v Hernandez, 268 AD2d 344 (1st Dept 2000). Although the People are not required to make a record as to the circumstances upon which they base their claim of exclusion under CPL § 30.30(4)(g) at the time they are requesting an adjournment (see People v Price, 14 NY3d at 64), the People did note on the record on May 25, 2010, the first adjournment date after learning of the officer's injury, and on July 13, 2010 that they were unable to be ready for trial due to the officer's injury. Additionally, the letters from the Manhattan Traffic Task Force to the Assigned Assistant District Attorney detailed above as well as a note submitted by the Assigned Assistant that he contacted the officer or his command on two occasions regarding the officer's status show that the People continued to make diligent efforts to determine the officer's availability. Moreover, the court recognizes that "no amount of diligence" on the part of the People would have made the officer recover more quickly. People v Mack, 300 AD2d 254, 255 (1st Dept 2002).

Finally, in view of the information provided by the People on the record on May 25, 2010 and July 13, 2010, it was reasonable for the People to believe that the officer would be available to testify within a reasonable period of time. Moreover, the court finds that the officer did become available within a reasonable period of time, namely on November 29, 2010. See generally People v Braithwaite, 28 Misc 3d 1224(A), 2010 NY Slip Op 51479[U] (Crim Ct, Kings County 2010) (period of roughly five months excluded in misdemeanor case due to officer's unavailability as a result of back injury); People v Marchina, 24 Misc 3d 1239(A), 2009 NY Slip Op 51815[U] (Suffolk Dist Ct 2009) (period of approximately five months excluded in misdemeanor case where officer underwent surgery for work-related injury and was not working); People v O'Grady, 24 Misc 3d 1208(A), 2009 NY Slip Op 51304[U] (Nassau Dist Ct 2009) (unavailability of two officers for medical reasons in misdemeanor case for three month period constituted exceptional circumstances); People v Catalano, 23 Misc 3d 1115(A), 2009 NY Slip Op 50766[U] (Suffolk Dist Ct 2009) (officer's unavailability for nine months in misdemeanor case deemed exceptional circumstances where he underwent surgery, physical therapy, and pain medication regimen despite returning to light work duty during that time); People v Woody, 24 AD3d 1300, 1301 (4th Dept 2005) (unavailability of witness in felony case due to illness for five month period excluded for exceptional circumstances); People v Mack, 300 AD2d 254, 255 (1st Dept 2002) (unavailability of witness suffering from post-traumatic stress disorder for 19 months in felony case deemed exceptional circumstances).

Accordingly, this court finds that the officer's unavailability from May 17, 2010 until November 29, 2010 constitutes exceptional circumstances. See People v Alcequier, 15 AD3d 162 (1st Dept 2005); People v Pharr, 204 AD2d 126 (1st Dept 1994); People v Marshall, 91 AD2d 900 (1st Dept 1983). As such, with regard to the four adjournments from April 26, 2010 until November 15, 2010, the People are charged with the 21 days from April 26, 2010 until May 17, 2010, the date [*5]of the officer's injury. See CPL § 30.30(4)(g)(i). [21 total days charged][FN2]

On November 15, 2010, the defendant did not appear in court, and a bench warrant was issued. The period from the issuance of the warrant until the defendant's return is excludable. See CPL § 30.30(4)(c)(ii). This adjournment is also excludable pursuant to CPL § 30.30(4)(g), as it occurred during the period when the arresting officer was medically unavailable. [21 total days charged]

On November 16, 2010, the defendant returned to court. The matter was then adjourned to December 9, 2010 for hearings and trial. This period is excludable because the People are entitled to a reasonable period of time to prepare for trial after the defendant returns on a warrant (see People v Muhanimac, 181 AD2d 464, 465-66 [1st Dept 1992]). Additionally, the time period from November 16, 2010 to November 29, 2010 is also excludable due to the officer's unavailability during this time. See CPL § 30.30(4)(g). [21 total days charged]

On December 9, 2010, the court noted the off-calendar filing of the defendant's instant motion and the People's in court filing of a response of that day. At that time, the court adjourned the matter to February 1, 2011 for its decision on the motion. Upon issuance of its decision on that date, the court adjourned the matter to March 2, 2011 for a hearing at the defendant's request. The matter was then adjourned three more times for this hearing, which was commenced on April 15, 2011 and completed on May 6, 2011. On May 6, 2011, the court adjourned the case to May 31, 2011 for decision. The period from February 1, 2011 to May 31, 2011 is excludable because it was occasioned by motion practice. See CPL § 30.30(4)(a). [21 total days charged]

Thus, the court finds that there are 21 chargeable days to date.

Since fewer than ninety days are charged, the defendant's motion to dismiss the information pursuant to CPL § 30.30 must be denied.

The foregoing constitutes the opinion, decision, and order of the court.

Dated:May 31, 2011

New York, New York [*6]

E N T E R:

_____________________________

Tamiko Amaker, J.C.C. Footnotes

Footnote 1:The court notes that while the defendant has been represented by The Legal Aid Society since commencement of this action, a different defense counsel filed the instant speedy trial motion than counsel who represented him at the hearing on this matter.

Footnote 2:The People's request for a two-week adjournment on April 26, 2001 is ineffective because they never previously announced their readiness for trial on this matter. C.f. People v Bruno, 300 AD2d 93, 95 (1st Dept 2002), app denied 100 NY2d 641 (2003); People v Bailey, 221 AD2d 296 (1st Dept 1995); People v Urraea, 214 AD2d 378 (1st Dept 1995). Further, the court declines to determine the effectiveness of the People's September 23, 2010 statement of readiness, as the minutes of that adjournment date are not before the court and reaching that determination is not necessary to decide the instant decision.