[*1]
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 28, 2008
City Court of Rochester


The People of the State of New York, Plaintiff,

against

Samuel J. Olds, Defendant.




08 - 00220



Kristen Pelletier, ADA

Michael P. Scibetta, Esq. (Counsel for the defendant)

Thomas Rainbow Morse, J.



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]

The Witnesses' Non-Appearance on the First Hearing Date


The People seek to excuse their not being ready on the date of the first hearing alleging the eight day interval between motion argument and the hearing was too short. [FN8] The defendant answers that the People's argument must fail because their method of subpoena service does not normally and did not in this case comport with the CPL which requires that subpoenas be served [*3]in the same manner as subpoenas under the Civil Procedure Law and Rules.[FN9]

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.

Non-Appearance of theWitness on Subsequent Hearing Dates

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]

The Officer's Unavailability in this DWI Case

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]

The Road Ahead

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)

Footnotes


Footnote 1:People v. Ingle,36 NY2d 413, 415 (1975)(reasonable suspicion for the vehicle stop); Mapp v. Ohio, 367 US 643 (1977)(evidence suppression); People v. Huntley, 15 NY2d 72 (1965)(statement suppression).

Footnote 2:See People v. Smith, 163 Misc2d 56(NYC Criminal Court, Sonberg, J., 1994)(CPL § 30.30 motion - failure of police witnesses to appear for pre-trial DWI hearings).

Footnote 3:See Criminal Procedure Law (CPL) §§ 450.10 & 450.15 (defendant) and CPL § 450.20 (People).

Footnote 4:People v. Simpkins, 193 Misc2d 447(Sup.App.Term, 1st Dept., 2002)(affirming for reasons stated in lower court opinion at 193 Misc2d 148) lv. denied 99 NY2d 585(2003).

Footnote 5:People v. Tano, 169 AD2d 878 (1st Dept., 1991); People v. Aquino, 6 Misc 3d 25, 26, 789 N.Y.S.2d 598, 598 (Sup.App.Term, 1st Dept.,2004).

Footnote 6:Simpkins, 193 Misc 2d at 449.

Footnote 7:Were such a motion before the court, it is likely that the entire period from the defendant's arrest on January 7, 2008, through the first date set for the hearing would be excludable for CPL § 30.30 purposes. People v. Stiles, 70 NY2d 765(1987)(1st day not counted); (CPL) § 30.30(4)(f)(without counsel); CPL §30.30(4)(b), People v. Kopcioski, 68 NY2d 615, 617 (1986)(request/consent of defendant); CPL § 30.30(4)(a), People v. Moorehead, 61 NY2d 851, 852 (1984)(motions under consideration by court).

Footnote 8:In their papers, the People assert that they had an "unreasonably short time within which...to subpoena the witness." Putting aside the process employed by the People to secure the witness, it is respectfully suggested that the court did not abuse its discretion in scheduling the hearing date in light of the Fourth Department's admonition that the District Attorney has a "duty to expedite the proceedings and furnish the personnel to assure the effective operation of the judicial system." People v. McCaffery 78 AD2d 1003, 03-04(4th Dept.,1980). Compare People v. Middlemiss, 198 AD2d 755, 56-57(3rd Dept.,1993)("a week to 10 days" sufficient time to reschedule a hearing) and People v. Valentine 187 Misc 2d 582, 89-90(,2001) ("there is no articulable basis for allowing the People "preparation" time where the substitution of counsel did not require the A.D.A. to prepare for anything other than getting the witness he was already, repeatedly, unable to do.")

Footnote 9:See CPL § 60.10(CPLR evidence rules apply unless a different specific CPL rule exist); CPL §610.10 CPL §60.20(2)(District Attorney's power to issue a subpoena).

Footnote 10:CPL § 610.20(2) provides that the "district attorney...may issue a subpoena." It does not say the prosecutor "must" or "shall" issue one in criminal actions or proceedings.

Footnote 11:The scheduled proceedings reflect a number of matters: Jury Trials (146); Misdemeanor Bench Trials (24); Bench Trials on Violations (140); Penal Law and AUO Pre-Trial Suppression Hearings (67); DWI Pre-Trial Hearings (41); VOP hearings (57); and post-conviction restitution, SORA or Outley hearings (11).

Footnote 12:The court exercised its discretion in that manner in this case and will probably continue to do so in most future cases. While there have been few cases involving in-custody defendants, when the people have not been ready for such proceedings the court has released those individuals. See CPL § 30.30(2)(statutory release periods).

Footnote 13:The theory behind exclusions for motions is based on concepts of waiver and estoppel. People v. Worley, 66 NY2d 523, 528 (1985)("In view of the defendant's express waiver of the delay, the People are not required to causally trace their lack of readiness to defendant's actions").

Footnote 14:Worley, 66 NY2d at 527.

Footnote 15:Since the witness is the only participant not in court when the proceeding was scheduled, it is understandable that once he or she is notified promptly the date selected may raise an irreconcilable conflict.

Footnote 16:People v. Chavis, 91 NY2d 500, 502(1998)("a statement of readiness for a hearing is not a substitute for a statement of trial readiness").

Footnote 17:People v. Kendzia, 64 NY2d 331, 337(1985) As the court noted "ready for trial in CPL 30.30 (1) encompasses two necessary elements. First, there must be a communication of readiness by the People which appears on the trial court's record....The second requirement under the statute...is that the prosecutor must make his statement of readiness when the People are in fact ready to proceed. The statute contemplates an indication of present readiness, not a prediction or expectation of future readiness." Id

Footnote 18:People v. McKenna, 76 NY2d 59, 64(1990)("the failure to provide grand jury minutes for court review after a motion to inspect and dismiss shows a lack of readiness"). The Court of Appeals went on to note that "the prosecutorial failure here must be deemed to be one having a direct bearing on the People's readiness, since the People can hardly claim to be "ready" when they have not done all that is required of them to bring the case to the point where it may be tried." Id. See also People v. England, 84 NY2d 1 (1994).

Footnote 19:McKenna 76 NY2d at 64.

Footnote 20:While employing the term "circumstance" in its analysis for the reasons earlier stated, the court is specifically not being asked to and is not here ruling that the officer's unavailability amounts to an "exceptional circumstance" for speedy trial purposes. CPL § 30.30(4)(g). For speedy trial purposes the law "allows exceptional circumstances to justify periods of delay not expressly covered by the statute, even in the absence of a formal continuance." People v. Goodman, 41 NY2d 888,889(1977). To take advantage of this section, however, the People must satisfy three conditions precedent: that they were not able to proceed "because of the unavailability of evidence material to the People's case;" that "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." Id. Given the manner in which the witness was subpoenaed and the lateness of the notification to the court, compliance with that part of the statute is an open question for speedy trial purposes. Compare People v. Mims, 155 Misc 2d 163, 167(Supreme Ct., NY County, Berman, J., 1992).

Footnote 21:Almost twenty years ago, the Court of Appeals reminded prosecutors that "Anderson cannot be read to support the notion that the People are immune from a postreadiness order requiring them to go to trial prior to the expiration of the CPL 30.30 (1) readiness period. To the contrary, as this court stressed in People v Douglass, a trial court is not "obligated to grant every adjournment requested by a prosecutor simply because statutory or constitutional time limitations have not expired. " " Hynes v. George 76 NY2d 500, 506 (1990)(citations omitted).

Footnote 22:CPL § 710.60(4). People v. Parris, 83 NY2d 342 (1994)(only reliable hearsay admissible).

Footnote 23:People v. Berrios, 28 NY2d 361, 368 (1971)("credibility is usually a crucial issue whenever facts are in dispute and courts have traditionally addressed themselves to the resolution of this basic question as a part of the fact-finding process."). See People v. Wheeler, 2 NY3d 370, 374(2004). Compare People v. Lopez, 206 AD2d 894(4th Dept., 1994)(document) and People v. Bryant, 135 AD2d 915, 916 (3rd Dept., 1987)(witness).

Footnote 24:"We reject the contention of defendant that...his right of confrontation was violated at that hearing. As the Supreme Court has written, "the right of confrontation is basically a trial right." Indeed, the interests at stake in a suppression hearing are of a lesser magnitude than those in the criminal trial itself. At a suppression hearing, the suppression court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial." People v. Brink, 31 AD3d 1139, 1140(4th Dept.,2006)(citations and some internal punctuation omitted) lv. to appeal den. 7 NY3d 865 (2006).

Footnote 25:That is not to say that the hearsay in this or other cases may be found insufficient based on the court's assessment of the credibility of the witness recounting the hearsay at the hearing. If all counsel is left to ask is: "Are you sure that is what the other officer said happened?" this court will try to assess " the opportunity that the witness had to observe the facts testified to and the probability or improbability of that testimony when viewed in the light of all the other evidence in the case." Excerpt from CJI. Compare In the matter of Jay R., 259 AD2d 436, 37-39(1st Dept., 1999) with People v. McCreary, 186 AD2d 1070, 1071(4th Dept., 1992). See also People v. Bryant, 8 NY3d 530, 534(2007) ("defendant could do little more than dispute the circumstances surrounding his arrest.").

Footnote 26:The same would hold true when the People are ready but the defendant fails to appear.