People v Martinez
Annotate this CaseDecided on September 1, 2015
Criminal Court of the City of New York, Queens County
The People of the State of New York
against
Elvis Martinez, Defendant.
2013QN019822
Attorney for defendant:
David W. Guy
Attorney for the People:
ADA Melissa Medilien
Althea E. Drysdale, J.
The defendant moves to dismiss two accusatory instruments consolidated under the instant docket number on the ground that he has been denied his statutory right to a speedy trial. Under the original accusatory instrument associated with docket number 2013QN019822, the defendant is charged with Assault in the Third Degree (Penal Law ["PL"] § 120.00[1]) and Harassment in the Second Degree (PL § 240.26[1]). Under the other docket number 2013QN039186, which was consolidated with this matter, the defendant is charged with Criminal Mischief in the Fourth Degree, (PL § 145.00[1]), Criminal Contempt in the Second Degree (PL § 215.50[3]) and Harassment in the Second Degree (PL § 240.26[1]). Because less than ninety (90) days are chargeable to the People on each of the charges, the defendant's motion is DENIED (see Criminal Procedure Law ["CPL"] 30.30[2]).
Pursuant to CPL 30.30(1)(b), the People must be ready for trial within ninety (90) days of commencement of a criminal action charging a defendant with a misdemeanor punishable by a sentence of imprisonment of more than three (3) months. Although a criminal action commences when the accusatory instrument is filed, counting for speedy trial purposes starts the following day (see People v Stiles, 70 NY2d 765 [1987]).
The first step in determining whether the People have satisfied their obligation to be ready under CPL 30.30 is generally determined by calculating the time between the filing of the first accusatory instrument and the People's declaration of readiness (see People v Cortes, 80 NY2d 201, 208 [1992]). Once this step is met, the Court then subtracts statutorily excludable periods of delay (see id.). Finally, the Court adds any additional delays that transpire after [*2]readiness has been declared when such delays are attributable to the People and are ineligible for any exclusions under the statute (see id.).
The defendant first appeared on May 30, 2013 to address the original accusatory instrument associated with docket number 2013QN019822, under which the defendant is charged with Assault in the Third Degree (PL § 120.00[1]) and Harassment in the Second Degree (PL § 240.26[1]), but he could not be arraigned because his counsel needed an adjournment. Therefore, the case was adjourned to July 8, 2013 for the defendant's arraignment. On July 8, 2013, the People were not ready. The case was adjourned for the People to file and serve the supporting deposition necessary to convert the complaint into an information. Off-calendar, on July 17, 2013, the People filed and served the supporting deposition of complainant Jaron Wilcox. Since the People satisfied their obligation under the statute by announcing their readiness for trial upon a valid accusatory instrument, nine (9) days are chargeable to the People as to the assault and harassment charges under this docket for the period between July 8, 2013 and July 17, 2013 (see People v Giordano, 56 NY2d 524, 525 [1982]; People v Caussade, 162 AD2d 4, 8 [2d Dept 1990]).
Under the other docket, number 2013QN039186, which was later consolidated with this matter, the defendant was charged with Criminal Mischief in the Fourth Degree, (PL § 145.00[1]), Criminal Contempt in the Second Degree (PL § 215.50[3]) and Harassment in the Second Degree (PL § 240.26[1]). The defendant was arraigned on July 17, 2013 and the People were not ready. The case was adjourned for the People to file and serve the supporting deposition necessary to convert the complaint into an information. Off-calendar, on August 12, 2013, the People filed and served the supporting deposition of complainant Jaron Wilcox. Since the People satisfied their obligation under the statute by announcing their readiness for trial upon a valid accusatory instrument, twenty-six (26) days are chargeable to the People as to the criminal mischief, criminal contempt, and harassment charges under this docket for the period between July 17, 2013 and August 12, 2013 (see Giordano, 56 NY2d at 525; Caussade, 162 AD2d at 8). Both matters were adjourned to September 5, 2013.
On September 5, 2013, the defendant requested a motion schedule to raise facial insufficiency issues and discovery issues as to both dockets. The Court set motion schedules and these matters were adjourned to November 7, 2013 for decision. On November 7, 2013, the Court had not yet rendered a decision on the omnibus motions because the People had yet to serve a response. The Court set another deadline for the People's responses, and the matters were adjourned to January 9, 2014 for decision on the motions. On January 9, 2014, the Court adjourned the cases to February 7, 2014 to allow the Court more time to consider the motion papers. The period of delay resulting from a defendant's pretrial motion and the time during which it is under consideration by the court is excludable (see People v Worley, 66 NY2d 523, 527 [1985]; see also CPL 30.30[4][a]).
On February 7, 2014, the Court rendered decisions on the omnibus motions. On docket number 2013QN019822, neither the assault charge nor the harassment charge were dismissed, and the appropriate discovery was ordered. On docket number 2013QN039186, the harassment charge was dismissed but the criminal mischief charge and criminal contempt charges were sustained. The matters were adjourned to March 26, 2014 for trial. No time is chargeable to the People, as they are entitled to a reasonable period of time to prepare for [*3]hearings or trial after a decision is rendered in a pre-trial motion (see CPL 30.30[4][a]; People v Reed, 19 AD3d 312, 315 [1st Dept 2005], lv denied, 5 NY3d 832 [2005]).
On March 26, 2014, the People were ready but the defendant was not ready. The cases were adjourned to May 5, 2014 for trial. No time is charged to the People for an adjournment at the request of defendant (see CPL 30.30 [4][b]).
On May 5, 2014, the People were ready but no disposition was reached, so the matters were adjourned to June 25, 2014 for trial. No time is chargeable to the People (see People v Henderson, 248 AD2d 485 [2d Dept 1998]).
On June 25, 2014, the People were ready but the defendant was not ready. No time is charged to the People for an adjournment at the request of defendant (see CPL 30.30 [4][b]).
On September 10, 2014, the parties agreed to consolidate the two dockets under docket number 2013QN019822. The matters were adjourned to October 29, 2014 to allow the parties time to prepare for the trial of the consolidated cases. No time is charged to the People, as they are entitled to a reasonable period of time to prepare for hearings or trial after a decision is rendered in a pre-trial motion (see CPL 30.30 [4][a]); Reed, 19 AD3d at 315).
On October 29, 2014, January 20, 2015, March 4, 2015, March 25, 2015, March 26, 2015, and April 6, 2015, the People were not ready and requested adjournments because the complaining witness was unavailable due to medical issues and treatment related to a tumor. The People have provided documentation from doctors stating that the complaining witness had surgery on October 29, 2014 and January 5, 2015. Further, a letter dated April 6, 2015 from Dr. Samuel Singer indicates that, as of April 6, 2015, the complaining witness was healing and required "continued, daily wound packing" (see Exhibit C of the People's Affirmation in Opposition). Further, the doctor indicated that the complaining witness was instructed by his office to stay home as much as possible to prevent infection (see id.).
Under CPL 30.30(4)(g)(i), the court must exclude "the period of delay occasioned by exceptional circumstances." In cases like this one, where witness testimony is unavailable, the People have the burden to show: (1) that the witness is material to their case; (2) that they exercised due diligence to obtain the witness's testimony; and (3) reasonable grounds to believe the witness will be available in a reasonable period (see CPL 30.30[4][g]). To invoke excludable time because of "exceptional circumstances," the People must demonstrate "credible, vigorous activity" in pursuing their investigation (People v Washington, 43 NY2d 772, 774 [1977]). Moreover, though the statute does not define "exceptional circumstances," the Court of Appeals has held that the phrase essentially means 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 complaining witness' testimony is clearly material, given that these cases involve an alleged assault against him and the continuing harassment of him. Through documentation, the People demonstrated that the complaining witness was being treated for and recovering from serious medical issues beginning on October 29, 2014, and continuing through April 6, 2015. Given the seriousness of his condition and the treatment, the adjournments on October 29, 2014, January 20, 2015, March 4, 2015, March 25, 2015, March 26, 2015, and April [*4]6, 2015 are not chargeable to the People as delays occasioned by exceptional circumstances (see People v Douglas, 47 Misc 3d 1218 [Crim Ct, Kings County 2015]; see also People v Goodman, 41 NY2d 888 [1977]).
On May 7, 2015, the People were not ready for three different reasons. The people requested a good cause adjournment to June 26, 2015. The Court reserved decision as to the extent to which the adjournment would be excludable for good cause.
First, the assistant district attorney assigned to the case was engaged in prosecuting another matter. However, the assigned assistant district attorney is not "material" to the case and her absence was not a circumstance which was beyond the control of the Office of the District Attorney. If they so desired, the People could have chosen another assistant district attorney to cover the case. Therefore, the engagement of the assigned assistant district attorney in another case does not serve as an exceptional circumstance supporting the exclusion of this adjournment from the time charged to the People.
In addition, the complaining witness was still unavailable, but the People did not provide any additional documentation as to the complaining witness' condition or when the complaining witness could be expected to testify. Generally, the complaining witness' unexpected unavailability due to illness is excludable (see id.). Further, "the prosecutor's representation is typically sufficient to establish a witness's unavailability due to medical reasons" (id.). However, "[a] defendant should not be required to bear indefinitely the burden of an open criminal matter and the collateral consequences of such an open criminal case" (id.). Here, the defendant's trial was already delayed over six (6) months primarily due to the complaining witness' medical problems, necessitating the documentation previously furnished by the People. To protect the defendant's rights, the People had a continuing burden after the April 6, 2015 adjournment to provide documented updates as to the expected future availability of the complaining witness. Therefore, on May 7, 2015, the verbal representation that the complaining witness was unavailable because he had continued medical issues did not serve as an exceptional circumstance supporting the exclusion of this adjournment from the time charged to the People.
However, on May 7, 2015, the People's last cited reason for their request for an excludable good cause adjournment was because the arresting officer was unavailable for trial. The arresting officer was attending the wake and funeral of fellow New York City Police Officer Brian Moore. Officer Brian Moore was shot in the head while patrolling a residential neighborhood in Queens, New York, on May 2, 2015 and passed away on May 4, 2015. These events received nationwide media coverage and many officers from New York and other states attended the wake and funeral to show support and solidarity. Given the nature of these events, this Court finds that the People are not charged for the time for the period from May 7, 2015 to May 10, 2015. Therefore, the People are chargeable with fifty-one (51) days for the remainder of the adjournment from May 11, 2015 to July 1, 2015.
On July 1, 2015, the Court set a motion schedule to address the instant motion for dismissal on speedy trial grounds and the matter was adjourned to August 4, 2015 for decision. On August 4, 2015, the case was adjourned to September 9, 2015 to allow the court more time to render a decision. The period of delay resulting from a defendant's pretrial motion and the time during which it is under consideration by the court is excludable (Worley, 66 NY2d at 527; see also CPL 30.30[4][a]).
[*5]CONCLUSION
Therefore, with respect to the remaining counts under original docket 2013QN039186, Criminal Mischief in the Fourth Degree and Criminal Contempt in the Second Degree, the People are charged seventy-seven (77) days.
With respect to the counts charged under the original docket 2013QN019822, Assault in the Third Degree and Harassment in the Second Degree, the People are charged sixty (60) days.
As such, the People have not exceeded the speedy trial limit of ninety (90) days on any of the charges. The defendant's motion to dismiss the accusatory instruments on speedy trial grounds is accordingly DENIED.
The foregoing constitutes the opinion, decision and order of the court.Dated: September 1, 2015
Kew Gardens, New York
____________________________
ALTHEA E. DRYSDALE, J.C.C.
ENTER
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