On July 12, 2011, the Court (Alvarado, J.) reviewed Defendant Kiason Shaw's motion to dismiss the indictment upon speedy trial grounds and concluded that a hearing was appropriate. This to provide the opportunity for the People to present evidence concerning whether the medical condition of certain law enforcement witnesses, who the prosecutor maintains are necessary for trial but were medically unable to testify, present "exceptional circumstances" justifying excluding such time periods for speedy trial purposes.

In the interim decision, the Court found the District Attorney had failed to "even come close" (Interim Dec., p. 3) to establishing the burden of justifying excluding the speedy trial time when the officers were not available. Adhering to this inquiry, an exceptional circumstances hearing was convened on August 23, 2011.

Interpreting its reference as limited to deciding whether the police officers' injuries excuse the prosecutorial delay for speedy trial purposes because of exceptional circumstances, the remainder of the motion, for the time being, is held in abeyance (Interim Dec. , p. 3). Consequently, the Court will refrain from addressing Defendant's other speedy trial arguments which do not involve claimed exceptional circumstances arising from the witnesses' medical conditions.^[FN1] [*2]

Background

Defendant's motion seeks to dismiss the indictment upon speedy trial grounds (see, CPL §210.20[1][g]). To understand Defendant's arguments involving exceptional circumstances, the Court notes the indictment covers, among other things, charges of felony assault upon a police officer (see, Penal Law §120.08), obstructing governmental administration (see, Penal Law §195.05); resisting arrest (see, Penal Law §205.30) and unlawful possession of marijuana (see, Penal Law §221.05). In this regard, Defendant argues the prosecutor exceeded the time limit by not being ready for trial within six months of the criminal action's commencement (see, CPL §30.30[1][a]). A parallel proceeding was before the Civil Complaint Review Board.

There is no dispute that the prosecutor delayed prosecution by asserting, at various times and among various reasons, the unavailability of at least two critical witnesses (Police Officers Jacob Newman and Charles Awani ^[FN2]). The District Attorney says both men suffered "line of duty" wrist injuries, with Newman's injury apparently directly related to the underlying incident.^[FN3]

Based upon the hearing transcripts submitted, the prosecutor apparently asked for continuances for medical reasons only on March 30, 2009 (Byrne, J.) and October 26, 2010 (Boyle, J.). Judge Boyle declined to decide whether the medical excuses constituted good cause for speedy trial purposes based upon the record presented (see, October 26, 2010, Tr. p. 2).

Simply stated, the prosecutor maintains the police witnesses were unavailable to testify at various stages of the prosecution because of injuries invoking the exceptional circumstances provisions of CPL §30.30 (4)(g). That section excludes the time the witnesses were unavailable from the speedy trial calculations. On the other hand, Defendant's counsel objected to the medical delay from the start (see, March 30, 2009 Tr. p. 2). While both officers Newman and Awani injured their wrists and consequently were on leave, such injuries, Defendant submits, have no impact upon the witnesses' ability to testify. Therefore, no exclusion should be allowed.

Legal Discussion

A significant right for criminal defendants is the right to a speedy and public trial which, if denied, requires dismissal of the indictment (see generally, People v. Taranovich, 37 NY2d 442 [1975]). In furtherance of this right, the Legislature, when enacting CPL § 30.30(4), provided, in pertinent part, that, when computing the time within which the People must be proceed to trial, delay occasioned by exceptional circumstances are excluded where delay results from a continuance granted at the District Attorney's request upon grounds of unavailability of evidence material to the People's case; this provided the District Attorney exercised due diligence to produce such evidence and reasonably believes such evidence will become available in a reasonable period.

While no precise definition exists of what constitutes an exception circumstance (see generally, People v. Smietana, 98 NY2d 336 [2002]), a witness' medical condition can be a basis of excludeble CPL §30.30 time where the medical condition is restrictive (see, generally, People v. Celestino, 201 AD2d 91 [1st Dept. 1994]). Unavailability of a principal witness for orthopedic injuries can fall within the [*3]exclusion of CPL §30.30 (4) (g) (see generally, People v. Goodman, 41 NY2d 888 [1994]). For instance, a large cumbersome cast in which an officer's right arm was encased can constitute a sufficiently restricting injury to qualify the People's witness as medically unable to testify (see generally, People v. McLeod, 281 AD2d 325 [1st Dept. 2001]). Likewise, exceptional circumstances can exist where an officer broke her ankle and required crutches to walk (see generally, People v. Hernandez, 268 AD2d 344 [1st Dept. 2000]) and where a detective broke his leg (see generally, People v. Celestino, supra.). Where a restrictive condition exists, case law requires documentation of the injuries by adequate medical records (see generally, People v. Pharr, 204 AD2d 126 [1st Dept. 1994]).

In this case, the District Attorney, despite opportunity to supplement the record, produced no personal medical records and, in fact, only one medical document (which does not support exclusion) is extant; ironically, that medical document was presented by Defendant.^[FN4]

While the prosecutor exercised her option at the hearing and as late as a matter of days to supply additional documents directed toward the witnesses' medical conditions, the documents submitted are merely internal police department paperwork and include no expert testimony. The documents consist of line of duty injury reports, affidavits, and attendance records for Newman, Awani, and a third officer, one Merlyn Britt.^[FN5] While the reports showed each witness being taken to a hospital when injured, no personal medical records were submitted for evaluation. Significantly, the prosecutor failed to say whether privacy and security rules, such as those set forth in the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) (see generally, 42 USC § 1320d-2) or any other federal or state statute, mitigate the failure to supply medical documents.

The Court is concerned that despite opportunity to produce medical documentation and testimony, the prosecutor failed to present actual medical testimony or evidence of the witnesses' conditions. Without such documentation or testimony, the Court lacks a basis for determining whether the witnesses' medical conditions justify their unavailability for testimony.^[FN6] The Court reaffirms Judge Alvarado's interim determination that the District Attorney failed the burden in establishing exceptional circumstances as regards Newman's and Awani's unavailability to testify. The evidence is insufficient to establish that either Newman or Awani suffered any more than minor injuries that had no effect upon either's ability to testify.

Additional Development

The mandate given this bench is limited to deciding whether exceptional circumstances exist as to the medical unavailability of two law enforcement witnesses, Newman and Awani. Now that the Court has determined such continuances do not so qualify, it directs the parties to submit speedy trial time recalculations which reflect the instant determination (see, CPL §30.30[1][a]), The calculations are to be submitted, together with any relevant legal argument, within twenty days of entry of this decision and order. Upon submission, the Court will consider this motion fully submitted.

[*4]Based upon the foregoing,^[FN7] it is

ORDERED that the branch of Defendant Kiason Shaw's motion, seeking determination that the medical unavailability of Police Officers Jacob Newman and/or Charles Awani do not qualify for exclusion as exceptional circumstances for purposes of calculation in conformance with the speedy trial rules, is GRANTED, and it is

ORDERED that the parties are to recalculate the speedy trial time, pursuant to CPL §30.30(1)(a), and submit such recalculation, together with any relevant legal argument, within twenty days of entry of this decision and order, and it is further

ORDERED that when the additional submissions are received, the Clerk of the Court will mark this motion as fully submitted.

The foregoing constitutes the Decision and Order of the Court.

Dated: Bronx, New York

October 7, 2011

___________________________DOMINIC R. MASSARO, JSC