People v Colvil
Annotate this CaseDecided on November 19, 2015
Criminal Court of the City of New York, New York County
The People of the State of New York
against
Trevor Colvil, Defendant.
2015NY020791
For the Defendant:
Seymour W. James, Jr., Esq.
(Lindsay Adams, of Counsel)
For the People:
Cyrus R. Vance, Jr., District Attorney, New York County
(Elizabeth D'Antonioe, of Counsel)
Raja Rajeswari, J.
The defendant, Trevor Colvil, is charged with Criminal Possession of a Weapon in the Fourth Degree (Penal Law [PL] §265.01[1]) and Weapon or other Dangerous Instrument within the Transit Authority (21 NYCRR 1050.8[a]). He moves for an order dismissing the accusatory instrument on the ground that his speedy trial rights pursuant to Criminal Procedure Law (CPL)30.30 have been violated. The People concede that CPL 30.30 time has elapsed.
The most serious crime of which the defendant is charged is a Class A misdemeanor. The People must be ready for trial for such an offense within 90 days of commencement of the criminal action, absent excludable time (CPL 30.30[1][b]). Because the Court holds that 98 days are chargeable to the People, the defendant's motion is granted.[FN1]
Under New York's readiness rule, when a defendant is charged with at least one non-felony offense punishable by more than three months of incarceration, the case must be dismissed when the People have not answered ready for trial within 90 days of the commencement of the action (CPL 30.30[1][b]). Criminal Possession of a Weapon in the Fourth Degree is a Class A misdemeanor punishable by up to one-year imprisonment (see PL §§265.01; 70.15[1]). Accordingly, the CPL 30.30 time-limit in this matter is 90 days from commencement of the action.
This action commenced on April 3, 2015, when the People served and filed a criminal [*2]court complaint charging the defendant with the afore-mentioned offenses. The accusatory instrument gave the People a readiness deadline of 90 days (CPL 30.30[1][b]). The defendant bears the burden of going forward with sworn allegations of fact to show that there has been an inexcusable delay beyond the time allowed by the statute, and then the People have the burden of justifying that delay (see People v Santos, 68 NY2d 859 [1986]).
A review of the defense motion papers, the People's written response, and the court file discloses that the periods of delay are attributable as follows:
The adjournment period from April 3, 2015 through April 22, 2015 is not chargeable to the People, as the defendant concedes, because it was ordered for hearings and trial, after he waived omnibus motions and requested suppression hearings (see CPL 30.30[4][a]; People v Worley, 66 NY2d 523 [1985]; (People v Douglas, 156 AD2d 173 [1st Dept 1989]; People v Green, 90 AD2d 705, 705-6 [1st Dept 1982]).
The adjournment period of April 22, 2105 through June 11, 2015, 50 days, is chargeable to the People because they were not ready for trial and hearings (see People v Kendzia, 64 NY2d 331, 337 [1985]).
The adjournment period of June 11, 2015 through July 9, 2015, 28 days, is chargeable to the People because they were not ready for trial and hearings (id.).
The adjournment period from July 9, 2015 through September 17, 2015, is not chargeable to the People because they announced their readiness for hearings and trial (id.).
On September 17, 2015 the People were not ready for hearings and trial because, they informed the Court, the arresting officer, an essential witness, was sick. The presiding judge noted on the Court's action sheet "no known return date." The People requested an adjournment until October 7, 2015, which the Court granted. This adjournment, 20 days, is chargeable to the People (see People v Bruno, 300 AD2d 93, 95 [1st Dept 2002]).
CPL 30.30(4)(g) provides that a period of delay must by excluded from consideration by the Court when it is
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 due diligence to obtain such evidence, and there are reasonable grounds to believe that such evidence will become available in a reasonable period . . . ."The unavailability of a principal prosecution witness, for medical reasons, is a sufficient exceptional circumstance [as provided by CPL 30.30(4)(g)] to warrant the exclusion of the period of delay" (People v Goodman, 41 NY2d 888, 899 [1977]; People v Alcequier, 15 AD3d 162, 163 [1st Dept 2005]). The People have the burden of establishing that they exercised due diligence to make a material witness available to testify at the hearings and trial (People v Zirpola, 57 NY2d 706, 708 [1982]). The People must show "vigorous activity in pursuing" the missing evidence (People v. Washington, 43 NY2d 772, 774 [1977]).
The Court's endorsement on the action sheet shows that the People had not made the necessary effort as of September 17, 2015 to determine the nature of the witness's illness beyond that he was "sick" and how long he would be unavailable. There is no reason to believe that the [*3]adjournment date of October 7 requested by the People was reasonably based on when the witness would be available on that date.Furthermore, there is nothing in the record showing that the People informed the Court or defense counsel that the witness would be available to testify as of October 7 until they appeared in court on that date and answered ready(cf. People v Womack, 229 AD2d 304 [1st Dept 1996]).[FN2]
The period of delay from October 7, 2015 through November 19, 2015 is not chargeable to the People because the defendant requested a schedule for response to and decision of the instant motion, which was served and filed in court. This period is excludable because it was occasioned by motion practice (see CPL 30.30[4][a]; People v Worley, 66 NY2d 523).
CONCLUSION
From commencement of this case with the filing of the criminal court complaint on August 7, 2009 to date, 98 chargeable days have passed without the People answering ready for trial. Because this is more than the 90-day time limit for the top count, the People have exhausted their CPL 30.30 time limit.
Accordingly, the defendant's motion for an order dismissing the accusatory instrument on CPL 30.30 grounds is hereby granted.
The foregoing shall constitute the opinion, decision and order of this court.
Dated: November 19, 2015
New York NY
________________________
RAJA RAJESWARI, J.C.C. Footnotes
Footnote 1:In their concession, the People calculate the chargeable time elapsed to be 136 days. For the reasons set forth below, the Court disagrees.
Footnote 2:Compare with People v Lopez, 2 AD3d 234 (1st Dept 2003) (proof of witness' family crisis and its tragic conclusion establishes unavailability); People v Mack, 300 AD2d 254 (1st Dept 2002) (hearing showed paralyzed assault victim too traumatized to testify at time); People v Martinez, 268 AD2d 354 (1st Dept 2000) (People tendered medical evidence to substantiate officer's injuries in car accident made him unavailable to testify); People v Celestino, 201 AD2d 91, 95 (1st Dept 1994) (witness' broken leg sufficiently restrictive to make him unable to testify); People v Pressley, 115 AD2d 228 (4th Dept 1985) (witness' medical unavailability amply supported by record); People v Luperon, 196 Misc 2d 154, 157 (Sup Ct, NY County 2003) (officer sustained knee injury in auto accident and put on pain killers that would affect testimony or if not taken during testimony would leave him in substantial pain); People v Valentin, 184 Misc 2d 942 (Sup Ct, Bronx County 2000) (People determined and informed court that police detective would be off-duty for six weeks after death of daughter in auto accident). More similar to the instant matter are the circumstances found to be un-exceptional or lacking in due diligence in People v Betka, 45 Misc 3d 883, 886 (Crim Ct, Queens County 2014) (People failed to show they tried to obtain witness held in U.S. Immigration and Customer Enforcement custody or to seek him out after his release); People v Zimny, 188 Misc 2d 600, 602-03 (Sup Ct, Monroe County 2001) (People's reliance on state trooper's employment schedule did not preclude him from being brought in to testify); People v. Meyers, 114 AD2d 861,862 (2d Dept 1985) (law enforcement officials made limited efforts to bring recalcitrant witnesses to testify).
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