Defendant moves this Court to dismiss the information against him pursuant to Criminal Procedure Law §30.30. The People oppose Defendant's motion. Defendant is charged with one (1) count of violating Vehicle and Traffic Law §1192.4, Driving While Impaired by Drugs, an Unclassified Misdemeanor; one (1) count of violating Vehicle and Traffic Law §600.1, Leaving the Scene of an Accident with Property Damage; and one (1) count of violating Vehicle and Traffic Law §1212, Reckless Driving.

The Defendant was arraigned on Counts 1 and 2 on March 29, 2005. The People added Count 3 on January 9, 2006. All adjournments from the date of the Defendant's arraignment until October 16, 2006 were either by consent or at the Defendant's request. As such, the period of time from March 29, 2005 to October 16, 2006 is excludable time.

A review of the Court file indicates the following adjournments are chargeable to the People:

A.The time from October 16, 2006 to October 30, 2006 (14 days). Said time period represents the People's adjournment request for trial.

B.The time from October 30, 2006 to December 11, 2006 (42 days). Said time period represents the People's adjournment request for trial.

C.The time from December 11, 2006 to January 30, 2007. On December 11, 2006, the People answered "Not Read" for trial. The case was then adjourned to January 30, 2007, for trial at the request of the People. On December 21, 2006, the People filed a Certificate of Readiness for trial. On the next date, January 30, 2007, the People answered "Not Ready" for trial.

Defendant argues that since the People were not ready for trial on the trial date subsequent to the People filing a Certificate of Readiness for trial, the Certificate of Readiness for trial was illusory and should, therefore, be rejected by this Court. [*2]

The People in their Opposition papers counter that a number of adjournment requests, including the one on January 30, 2007, were due to the unavailability of a "necessary and essential witness." The witness that the People indicate is necessary and essential is Dr. Rio. Dr. Rio is the person who tested the Defendant's blood sample to determine whether it contained the presence of drugs. The People indicate that Dr. Rio has been unavailable because he has been tending to the care of his ailing wife, who is suffering from cancer. The People specifically assert that Dr. Rio was involved in attending his wife's chemotherapy sessions at the hospital and caring for her after the sessions. The People argue that this case involves a "sufficiently restricting medical reason of a material prosecution witness," which constitutes an exceptional circumstance. Accordingly, the People maintain that their adjournment requests should be excluded pursuant to Criminal Procedure Law §30.30(4)(g). Criminal Procedure Law §30.30(4)(g) provides as follows:

"In computing the time within which the people must be ready for trial ... the following periods must be excluded: other periods of delay 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; or (ii) the continuance is granted to allow the district attorney additional time to prepare the people's case and additional time is justified by the exceptional circumstances of the case."

The Defendant is charged with violating Vehicle and Traffic Law §1192.4, Driving While Impaired by Drugs. As part of their case the People would have to prove that the Defendant was under the influence of drugs at the time she operated the vehicle. Testimony that the Defendant's blood contained drugs shortly after the operation of the motor vehicle is not only relevant to the People's case, but it is necessary and essential to the People proving the charge. Since Dr. Rio is the witness who tested the Defendant's blood, and will presumably provide testimony as to the Defendant's blood results, this Court finds that Dr. Rio is a material witness.

It is evident and understandable from the facts and surrounding circumstances as outlined by the People, that Dr. Rio's care of his wife during her illness is paramount in his life. However, it is also apparent that Dr. Rio's contributions to the care of his wife during her cancer has been and will continue to be ongoing for some unpredictable time to come. Hence, the argument by the People that Dr. Rio was unavailable on January 30, 2007 because of "unforeseen circumstances of caring for his ill wife," is unpersuasive. This Court finds that the care of Dr. Rio's wife was neither unforseen, nor did it make Dr. Rio a legally "unavailable" witness.

There is a dramatic difference between a witness being "unavailable" due to medical reasons of his or her own, and a witness having ongoing and recurring scheduling conflicts because of medical appointments regarding their family member(s). Certainly chemotherapy appointments are scheduled in advance by medical care facilities and do not arise overnight. This Court is well familiar with the line of cases which exclude adjournments due to a material [*3]witness caring for a critically ill family member for a limited period of time or due to a death in a material witness' family. However, in this case the People concede that Dr. Rio is available on certain dates and not available on others. Thus, this Court finds that Dr. Rio is not "unavailable" as contemplated by C.P.L. § 30.30(4)(g).

The People argue that as of December 21, 2005, Dr. Rio was available to testify and the People filed a Certificate of Readiness for Trial regarding same. According to the People, Dr. Rio subsequently became unavailable. The People fail to indicate the length of the period of time for which Dr. Rio was available, nor do they relate when he specifically became once again, unavailable.

Although the People claim they used due diligence to ascertain the nature of Dr. Rio's unavailability, they merely indicate that he was not available on January 30, 2007, but neglect to indicate when Dr. Rio would in fact be available. Rather, the People state that the Defendant should have advanced the case for trial once he received their Certificate of Readiness for Trial. To the contrary, this Court finds that because the time was being charged to the People it was incumbent on the People to advance the case for trial or contact defense counsel and the Court to set the matter down for trial on a date when Dr. Rio was available.

It is well established that the unavailability of a principal prosecution witness for medical reasons is a sufficient exceptional circumstance to warrant the exclusion of a period of delay. In this situation, the recurring scheduling unavailability of Dr. Rio is not due to his own medical condition, and it is not due to an isolated circumstance involving a family member. Rather, the scheduling unavailability is one that will continue to occur as long as dates selected for trial are in conflict with his wife's medical treatments. A witness's unavailability is not a blanket exclusion of speedy trial time for the People. The People have an obligation and responsibility to be aware of their witness' availability and must aggressively pursue the witness' availability and provide the Court with available dates so as to prevent speedy trial time from expiring. In the case at bar, the People have not accomplished this.

This Court finds that the People have not satisfied their burden of proving that Dr. Rio was unavailable for any period of time other than on specific Court dates. Nevertheless, in light of the condition of Dr. Rio's wife and the Court's understanding of Dr. Rio's need and desire to care for his ailing wife, and based on the Court being closed during the last week of December 2006, this Court will exclude a limited period of the time for which the People argue should be excluded. The time period from December 21, 2006 (the date the People filed a Certificate of Readiness for Trial) until January 8, 2007, is excluded. The People will be charged the time from December 11, 2006 to December 21, 2006, and charged the time from January 8, 2007, to January 30, 2007 (32 days).

D.The time from January 30, 2007 to February 13, 2007 (14 days). Said time period represents the People's adjournment request for trial. The People have failed to establish what period of time if any Dr. Rio was unavailable. Therefore, as outlined above, this Court does not find that Dr. Rio was unavailable for said time period.

To date, the People have been charged with a total of One Hundred and Two (102) days. Therefore, Defendant's motion to dismiss this matter is GRANTED.

This constitutes the opinion, decision and order of the Court.

Dated: May 14, 2007

ENTER:

____________________________________

Norman St. George, District Court Judge

cc: Nassau County District Attorney's Office

Law Offices of Frederick J. Annibale, Jr.