People v Olds |
2008 NY Slip Op 50852(U) [19 Misc 3d 1125(A)] |
Decided on April 28, 2008 |
City Court Of Rochester |
Morse, 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This opinion is uncorrected and will not be published in the printed Official Reports. |
The People of the State
of New York, Plaintiff,
against Samuel J. Olds, Defendant. |
Following his arrest for DWI and other vehicle and traffic offenses, the
defendant moved to suppress evidence derived from an allegedly illegal stop and arrest. On
February 13, 2008, this court scheduled an Ingle/Mapp/Huntley [FN1] hearing to be held eight days later. The People
had no witnesses available on that day and requested an adjournment of the hearing which was
granted over the defendant's objection until March 24, 2008. On that date, the People presented
one witness but were unable to complete the hearing because the officer who stopped the
defendant's vehicle did not appear. The People requested a further adjournment. The defendant
again opposed that relief and asked the court to rule based on the limited evidence presented. The
People then asserted that if the court were to grant the defendant's request, there was sufficient
hearsay proof at the hearing for the court to find reasonable suspicion for the missing officer to
have stopped the defendant's car. This court reserved decision asking the People to provide
information regarding the reason for the officer's failure to appear and requesting that both parties
prepare legal arguments for the court's review. For the reasons which follow, this court will grant
the People's request for an adjournment and deny summary relief.
There are few reported cases on the exact issue before this court: What is the appropriate
judicial response to the People's not being ready for a pre-trial hearing ordered by the
court?[FN2] That is not
surprising since issues of calendar control are within the sound discretion of the court. In
addition, statutory limits on interlocutory appeals in criminal cases militate against immediate
[*2]review of that discrete issue. [FN3] Accordingly, analysis of the issue generally
arises only in those cases involving People's appeals of statutory speedy trial
dismissals[FN4] or
defendants' appeals from convictions entered after a denial of speedy trial motions. [FN5] In one of those cases, the court
noted, "the postreadiness adjournment periods now in dispute [were] properly charged to the
People,since the delays resulted solely from the People's repeated and unexplained unreadiness to
proceed meaningfully at the combined suppression hearing twice scheduled upon ample notice."
[FN6] While no speedy trial
motion has been filed, the analysis in those cases may be instructive in resolving the issue now
before this court.[FN7]
In local criminal court cases, the People rarely personally serve subpoenas for hearings or trials. Instead subpoenas are mailed or delivered through inter-office channels. While thatprocedure is not in compliance with the CPL, it may not be unreasonable given the volume of criminal cases. Moreover, although the CPL allows for subpoenas, it does not require them.[FN10] While nothing prevents the People from simply asking a witness to appear, it might be difficult for a prosecutor to later demonstrate due diligence without having issued a subpoena.
In DWI cases such as this, personal service might prove cumbersome and expensive since the witnesses are normally law enforcement officers who work late night or early morning shifts and whose home phones and addresses are unavailable for obvious reasons. Most police agencies log-in subpoenas when received and create an internal paper trail illustrating when it was picked-up by the officer subpoenaed.
Intake for this court during the first four weeks of 2008 was over 1,200 cases. In the four months since the term began on January first, this court has scheduled nearly five hundred hearings and trials in those cases. [FN11] In the majority of proceedings involving misdemeanors the People have been ready to proceed on the first scheduled date. The total number of times in which they have not been ready while not insignificant, related mostly to cases involving civilian witnesses. The instances in which law enforcement officers have failed to appear is remarkably small. Even smaller is the number of times an officer has failed to appear when subpoenaed more than once.
Taking into account the staggering number of factual proceedings scheduled by this court and the relative high degree of success the People have had in securing the attendance of witnesses on the date first set, the court has in the past allowed the People one adjournment to secure a material witness when that individual has not appeared for an initial pre-trial hearing.[FN12] In those cases, however, since defense counsel almost always opposed adjournment and sought summary relief, the People were not able to avail themselves of statutory speedy trial exclusions relating to adjournments requested by or consented to by counsel. They also were not able to [*4]successfully assert that the time was excludable as time during which motions were under consideration by the court since had the People been ready on the first scheduled date the motion would have been decided then.[FN13] When such hearings must be adjourned, it cannot be seriously argued that by adjourning the hearing "delays have been caused by the defendant for his own benefit, and with the court's permission, under circumstances in which both the defendant and the court have determined that the adjournment is desirable."[FN14]
It is therefore clear that the rules relating to speedy trial afford an individual defendant an
adequate legal remedy to address the harm caused by the failure of the People to complete the
hearing on the first scheduled date. However, the answer to the question of how to best handle
lack of readiness for a hearing is more complex because it significantly impacts the rights of a
number of others in addition to the defendant.
There are only so many hours in a day. When this court schedules matters
for time- consuming pre-trial hearings, it must necessarily schedule other hearings and trials for
later dates. When the court learns on the day of or the day before a hearing of the unavailability
of a witness, it is too late to schedule another matter for that slot. Time has been wasted, an
opportunity lost and valuable ancillary rights affected. However, when the court receives notice a
week or ten days before the scheduled hearing date, however, it becomes possible to reschedule
the hearing to avoid the conflict. The court may be able to assign a new date and time either
before or after that originally set and insert another matter to fill the void just created. Everybody
wins. For that reason, when this court has been given such timely notice, it has ruled that the
People are not charged with any speedy trial time because meaningful re-scheduling was
possible.[FN15]
It is clear that the People's readiness for trial and readiness for a pre-trial hearing are generally and theoretically not synonymous. [FN16] Yet, in DWI matters they are, in fact, almost always the same. When a defendant challenges the stop and arrest by requesting an Ingle/Mapp/Huntley hearing the very same law enforcement testimony is needed for the pre-trial hearing and the trial. The inability of the People to secure the witness for the pre-trial hearing, [*5]therefore, casts serious doubt on any alleged readiness for trial or Kendzia notice [FN17] since it belies "actual readiness" which is a required component of such an announcement. [FN18] The People's failure to go forward with a pre-trial suppression hearing is "a direct, and virtually insurmountable, impediment to the trial's very commencement." [FN19]
The court finds, however, that in this case, the missing officer's previously scheduled participation in periodic and necessary in-service canine handler training is a circumstance which excuses his failure to appear at the second hearing. [FN20] Accordingly, this court will re-schedule the hearing over the objection of counsel for the defendant to allow the witness to testify. If the witness fails to appear on that date, the court will direct that the People's proof is closed and decide the motion on the evidence already received. [FN21] The People are fore warned [*6]that if they proceed down this latter path, they may be doing so at their peril.
While hearsay is admissible at a pre-trial hearing by statute, [FN22] the weight to be accorded the admitted
testimony is within the province of the court. [FN23] While cross-examination is not
constitutionally compelled, [FN24] when skillfully employed it remains one of
the most effective tools for ascertaining the truth. Given the neutral position assigned to judges in
such pre-trial proceedings, such rigorous inquiry by an advocate may be essential when trying to
determine the central issue before the court — the reason for the stop of the defendant's
vehicle. [FN25]
An even more challenging issue than the one presented here arises when no prosecution witness appears. Given the speedy trial remedy available to the defendant as well as the [*7]likelihood that in DWI and other cases summary suppression might force a People's appeal, the interests of justice and judicial economy suggest it might be an abuse of discretion to summarily grant suppression on the initial hearing date. But what about complete non-appearance the second, third or fourth time? Is a court required to adjourn a pre-trial suppression hearing ad infinitim until expiration of speedy trial time-frames? Should a court place the case on a general or reserve calendar until the People are ready to complete the hearing? Each judge may have a different answer and that judicial discretion is a precious component of and essential to our court system. However, due process for both defendants and victims may necessitate a measure of predictability in this area. If that is a worthwhile goal, the question becomes whether the legislature should amend CPL 710.60, or would the parameters of judicial discretion in this area be best forged through the common law process of appellate review?
This court has a constitutional and statutory responsibility to ensure each defendant's right to a speedy trial. The court is also obligated to provide victims with a prompt just resolution of their matters and the "closure" often associated with that finality. Lastly, the law demands, a judge's oath requires, and our community expects that jurists will control court calendars in a manner that will protect those interests fostering fair, impartial and timely dispositions without fear, favor or sympathy. Accordingly, when a court is unable to fulfill that commitment because a prosecution witness fails to appear for a scheduled hearing or trial, the abrogation of rights extends far beyond those associated with the particular case.[FN26]
Enter,
Dated:April 28, 2008___________________________________
Rochester, New YorkHon. Thomas Rainbow Morse, JCC
To:Kristen Pelletier, ADA
Michael P. Scibetta, Esq. (Counsel for the defendant)