The Defendant by motion dated 7/23/2013 moves this Court for an order requesting various relief including dismissal of this indictment on the ground that the Defendant has been denied his constitutional right to a speedy trial.

It is un-controverted that the defendant is alleged to have been involved in a motor vehicle incident where a pedestrian was killed through his actions. The incident at issue occurred on or about February 6, 2001. The facts as asserted by the People that brought about the death of the victim are quite horrific.

On February 6, 2001, the defendant and the victim were involved in an initial "low speed ^[FN1]" accident; the defendant struck the victim with the vehicle he was driving, causing the victim to roll on top of the vehicle's hood and then causing the victim's body to lay in the street somewhat abreast of the front and rear driver's side tires of the defendant's vehicle. From the account given by the People in their papers, the oral presentation to the Court, and from lay witnesses accounts in the Grand Jury the defendant stopped his vehicle after he struck the victim and then proceeded to slowly drive over the victim's torso and skull with his vehicle's wheels. The Court credits the version in the Grand Jury by the individual who was stopped at the intersection of Post Avenue and Maple Avenue who gave a compelling first hand vivid account of what occurred on the date at issue. This account succinctly and factually supports the crimes charged in the indictment. It was made clear from this gentlemen's testimony that the defendant was physically aware of the presence of a pedestrian coming into contact with his vehicle. The actions of defendant in failing to stop his vehicle when the victim was under the car or within millimeters of the vehicle, and moving the car sets forth the mens rea required pre or post Feingold, [People v. Feingold 7 NY3rd 288, 296 (2006)] to support a charge of Depraved Indifference Murder.

From the accounts gave by those who testified in the Grand Jury the victim expired at the scene soon thereafter as a result of the actions of the defendant. Those accounts also have the defendant speeding away from the scene. Shortly thereafter the defendant eventually fled to his native country of Ecuador. The defendant was indicted in absentia in December of 2001 for the crimes of Depraved Indifference Murder [Penal Law § 125.25 (2)] and Leaving the Scene of an Accident with a Fatality [Vehicle and Traffic Law §600.(2)] .

It is essential to the Court's analysis that it is clear that the defendant was a dual national of the United States and Ecuador, and when he was finally apprehended he had an Ecuadorian passport which listed him as an Ecuadorian citizen.

The record is also clear that during the time period of 2001 through 2005 the People believed that the defendant was hiding within the continental United States. The People's opposition is replete with numerous attempts to locate the defendant. It is patently clear to this Court that the Nassau County Police Department and the Prosecutor's office from the date of this incident until the defendant's apprehension have consistently sought the whereabouts of the defendant. The Court finds that the People did make adequate attempts to locate the defendant's whereabouts during the period of the time the defendant was on "the run" from the charges he faced in Nassau County.

It was not until 2005 that the People became aware that the defendant was hiding in Ecuador. The People have conclusively set forth to this Court's satisfaction that the Country of Ecuador and the United States do have an extradition treaty, nonetheless, any attempt to extradite the defendant would have been futile; as the Ecuadorian constitution forbids extradition of its nationals, which all parties concede, applies to the defendant. [See [*3]Ecuadorian Constitution Article 42] The Court finds it ironic that Edward Snowden the former CIA employee chose Ecuador as one of his places granting extradition, he was seeking asylum prior to settling in Russia, as Ecuador is known for its penchant for not extraditing individuals who commit offenses in other countries.See, Michael Martinez, CNN, "US asks Ecuador to reject any asylum request from Edward Snowden," June 30. 2013, http://www.cnn.com/2013/06/29/politics/nsa-leak/

Further, when the people learned of the defendants whereabouts they contacted INTERPOL and had what is referred to as a "red notice" issued against the defendant. This "red notice" is what the People refer to in their opposition is an "all point's bulletin" to stop the defendant if he travels outside Ecuador.

This "red notice" was what eventually led to the defendant's capture when he attempted to use Panama as a lay over when traveling from the Dominican Republic back to Ecuador.It is clear to the Court that the People were not cognizant of the defendant's whereabouts until the defendant's case was aired on the television show "America's Most Wanted." Factually this Court finds that the defendant was absent within the meaning of CPL §30.20 from February 2001 until 2005 and that the People were also using due diligence in attempting to locate him. Further, the facts set forth in the People's opposition show that once they did conclude that the defendant was in Ecuador any attempt to extradite the defendant would have been unresponsive by the Ecuadorian Government.

The Court finds the defendant's claim that his rights to a speedy trial have been denied pursuant to CPL §§ 30.20 and 210.20 (1)(g), is without merit. It was the defendant's conduct alone that has caused his delay in receiving a speedy trial.

As the Court of Appeals has set forth in People v. Taranovich, 37 NY2d 442 (1975), five factors are looked into for an analysis of a claim of constitutional depravation of a speedy trial. As the People have set forth in their opposition no one factor or combinations of factors are to be looked at but the analysis must be on a case by case basis. (See People v. Taranovich, supra). It is clear to the Court that it is the defendant's conduct alone which caused the delay he now complains of in this current application. It was he who caused the extent of the delay, he who caused the reason for the delay, and it was he himself who caused any prejudice to himself in presenting a defense based upon the passage of time. All of the wounds that the defendant complains of are in essence self- inflicted. Moreover, the Court finds that as a matter of law on the facts adduced from the papers submitted and oral argument had that the People have exercised due diligence in their attempt to prosecute the defendant. See People v. Duncan, 230 AD2d 750 (2nd Dept., 1996)

This Court finds that in balancing the factors as set forth in Barker v. Wingo, 407 US 514 (1972) the defendant has not been denied a right to a speedy trial and hence that portion of his motion seeking dismissal pursuant to CPL §§ 30.20 and 210.20 (1)(g), is hereby denied.

The Court was not able to find any binding authority, but holds that the People had no obligation to go to Ecuador to attempt to prosecute the defendant in his native country, even if Equador would have been receptive of such a request.

The Court has inspected the Grand Jury minutes for the purpose of determining the legal sufficiency of the evidence to support the indictment (CPL § 210.30) and the adequacy of the [*4]legal instructions to the Grand Jury (CPL § 210.35[5] and 190.25[6]) and finds that it is not necessary to release the minutes or any portion thereof to the defendant's attorney to assist the Court in making its determination. (CPL § 210.30[3])

Upon inspection of the minutes, this Court finds that the evidence before the Grand Jury was legally sufficient to establish the crimes charged in the indictment.

The Grand Jury proceeding was not defective. Proper legal advice and adequate instructions were given by the Assistant District Attorney. (CPL § 210.35[5] and 190.35[6]).

The Court finds that there are no grounds upon which to dismiss the indictment or any count thereof. See People v. Galatro, 84 NY2d 160 (1994)

This Court's reading of the Grand Jury minutes in the light most favorable to the people finds that the defendant's actions on the day at issue clearly set forth to this Court's satisfaction that the defendant at the time and place at issue had a mens rea of "utter disregard for the value of human life." See People v. Feingold 7 NY3rd 288, 296 (2006) In a light most favorable to the prosecution the testimony before the Grand Jury clearly set forth that the defendant had time for reflection from the moment his vehicle first had contact with the victim until he eventually drove over her with two of the tires of his vehicle.

It is self evident to this Court that factually it could be said that in the matter herein the defendant did not care whether the victim lived or died. See People v. Barboni 21 NY3rd 393 (2013)

Any challenge to the statute alleging vagueness is hereby denied for failure to comply with CPLR 1012 (b) (1) and (3).

The remainder of the defendant's motion is hereby denied in its entirety.

This shall constitute the Decision and order of this Court.

E N T E R:

Dated: November 20, 2013_______________________________

Angelo A. Delligatti, A.J.S.C.