The People of
the State of New York
against
Anetra Douglas, Defendant.
|
2014KN055008
Ting Ting Cheng, Esq., Brooklyn Defender Services, attorney for
defendant
Kenneth Thompson, District Attorney, Kings County, by Philip Hung Esq.,
Assistant District Attorney, Brooklyn, of Counsel for the People
Andrew Borrok, J.
In the case at nisi prius the court is required to balance the defendant's
statutory right under CPL § 30.30 to a speedy trial and the People's compelling state
interest in investigating and prosecuting allegedly criminal conduct. The issue is raised as
the defendant has moved to dismiss the pending charges on the grounds that she has been
denied her right to a speedy trial pursuant to Criminal Procedure Law (CPL)
§§ 30.30(1)(b) and 170.30(1)(e). The People oppose that motion.
Specifically, the issue in this case is whether the court must dismiss the accusatory
instrument because the People have failed to secure a supporting deposition of the 11
year old complaining witness during the 133-day period between the defendant's
arraignment and December 4, 2014, or whether the time should be excluded as an
"exceptional circumstance" pursuant to CPL § 30.30(4)(g).
For the reasons set forth below, the defendant's motion is granted.
THE RELEVANT FACTS AND
CIRCUMSTANCES
On July 24, 2014, the defendant, who is charged with Assault in the Third Degree
(Penal Law (PL) § 120.00[1]), Attempted Assault in the Third Degree (PL §
110/120.00[1]), Endangering the Welfare of a Child (PL § 260.10[1]), Menacing in
the Third Degree (PL § 120.15) and Harassment in the Second Degree (PL §
240.26[1]), was arraigned. At the time of arraignment, the People did not have a
supporting deposition. The matter was therefore adjourned to August 4, 2014 for
conversion. On that occasion, the People still did not have a supporting deposition and
the matter was adjourned yet again to October 27, 2014. On October 27, 2014, the
People still did not have the supporting deposition and the matter was further adjourned
to December 4, 2014. On December 4, 2014, the People still did not have the [*2]supporting deposition and the defendant requested that the
matter be dismissed pursuant to CPL § 30.30.
To support its contention that the failure to produce a supporting deposition was
wholly the result of the excusable unavailability of the complaining witness, the People
recite in their Affirmation in Opposition to Defendant's Motion to Dismissal Pursuant to
CPL § 30.30 (the People's Affirmation) that the complaining witness had been
admitted to Kings County Hospital and was undergoing treatment during the period from
July 24, 2014 until August 4, 2014. Accordingly, the People argue that the complaining
witness was "unavailable" to sign a supporting deposition. The People also report that the
complaining witness remained in treatment at Kings County Hospital and was still
"unavailable" to sign a supporting deposition during the period from August 4, 2014
until August 29, 2014 and was subsequently admitted to Bellevue Hospital for treatment
during the period from September 11, 2014 until October 27, 2014. Therefore, the
People argue that except for the 13-day period between August 29, 2014 and September
11, 2014 during which the defendant was not admitted to any treatment facility, the
complaining witness was otherwise continuously unavailable and unable to sign a
supporting deposition. The People also suggest in their opposition that they abided with a
request by the New York City Administration of Children's Services (ACS), which
requested that the People not speak with the complaining witness during her
hospitalizations. To support that contention, the People have provided a letter
(the ACS Letter), dated December 3, 2014 from Ms. D. Maddux on behalf of ACS which
provides that:
On 7.23.14, Shanayzia Douglas was admitted to Kings County Hospital for
psychiatric treatment after showing signs of physical aggression to ACS on 7.25.14. She
was remanded to the Commissioner of ACS on 7.25.14. On 8.29.14, Shanayzia was
prematurely discharged and taken to the Children's Center to await placement. While at
the Children's Center, Shanayzia continued to be physically aggressive with staff and
other children and was eventually taken to Bellevue Hospital where she was admitted on
9.11.14. She was receiving comprehensive psychiatric care and it was recommended by
her doctors that she remain there until placement was secured. Shanayzia was discharged
and escorted directly to placement on 10.14.14. She was placed with JCCA @
Edenwald, which is a residential treatment center in Pleasantville, NY. She currently
does not have a discharge date.
It is currently not advisable to take her out of treatment as it could interfere
with her progress and possibly cause her to decompensate.
The People also note that the complaining witness was additionally admitted to a
residential treatment center at the Jewish Child Care Association during the period from
October 27, 2014 until December 4, 2014. It is therefore the People's principal
contention that as the [*3]complaining witness was
receiving treatment during that essentially entire 133-day period (save for the 13-day
period between August 29, 2014 and September 11, 2014 that concededly should be
charged to the People), no portion of the elapsed time should be charged against the
People pursuant to CPL § 30.30.
On December 4, 2014, the court established a motion schedule pursuant to which the
defendant would be allowed until January 7, 2015 to serve and file a motion to dismiss,
and the People would be allowed until January 26, 2015 to respond. Pursuant to that
schedule, the matter was to be determined on February 17, 2015. However, on February
17, 2015, the court indicated that it required more information before it could render a
decision. On February 17, 2015, the People acknowledged that they still did not have the
supporting deposition and, perhaps more importantly, that they had neither any
information as to when they might have a supporting deposition nor a date when the
complaining witness might be discharged from custodial care. Based upon those facts,
the court requested of the People that they serve and file a supplemental affirmation by
March 10, 2015 off-calendar explaining in detail the complaining witness's alleged
inability to sign a supporting deposition during her hospitalizations, noting that the ACS
case worker's explanation of the complaining witness' unavailability set forth in the ACS
Letter was unsupported by any medical or psychological foundation and indicating that a
doctor's affirmation would be required. The defendant was granted permission to file a
sur-reply by April 1, 2015. The matter was then adjourned until April 16, 2015 for
conversion and decision regarding the application of CPL § 30.30 to the facts of the
case.
Notably, the People did not file a supplemental affirmation and on the April
16, 2015 return date the People indicated that they were no further along in securing the
supporting deposition of the complaining witness or the additional information
requested.[FN1]
The case was further adjourned until May 5, 2015 upon which date the court
held a hearing to determine whether "exceptional circumstances" under CPL §
30.30(4)(g) existed during the 133-day period between the defendant's arraignment and
December 4, 2014 excusing the People's lack of readiness or whether the complaint
should be dismissed pursuant to CPL § 30.30. During the hearing, the People
indicated that (i) they could not provide a doctor's affirmation explaining a valid reason
why the complaining witness was not available to sign a supporting deposition, (ii) they
had no information that signing such supporting deposition at the medical facility was
not feasible because, for example, the complaining witness was unconscious, in a coma
or otherwise temporarily mentally incapacitated with a foreseeable possibility of
regaining capacity, (iii) they had no information as to whether the hospitalization of the
complaining witness was related to any injuries allegedly caused by the defendant, (iv)
the People were unable to obtain any information as to a scheduled discharge date for the
complaining witness, and (v) the People were otherwise unable to provide any
information as to when the People could secure a supporting deposition.
On the facts described above, the defendant argues that the People should be charged
with [*4]all of the 133-day period from July 24, 2014
until December 4, 2014 during which the accusatory instrument was never converted into
an information. The People concede that the accusatory instrument is not an information
and that the People have never been ready during the entire 133-day period between the
defendants' July 24, 2014 arraignment and December 4, 2014, but argue that the time the
People have failed to convert the accusatory instrument into an information should be
excluded as an "exceptional circumstance" under CPL § 30.30(4)(g). This court
disagrees.
DISCUSSION
Pursuant to CPL § 30.30(1), the applicable speedy trial time is determined
based on the highest charge in the accusatory instrument. People v Walton, 165
Misc 2d 672, 674 (Crim Ct, Richmond County 1995). In this case, the highest crime
charged, PL § 120.00(1) Assault in the Third Degree, is a class A misdemeanor that
is punishable by a sentence of imprisonment not to exceed one year. PL § 70.15(1).
Where a defendant is charged with a misdemeanor punishable by a sentence of
imprisonment of more than three months, a speedy trial motion must be granted if the
People are not ready for trial within 90 days of commencement of the criminal action.
CPL § 30.30(1)(b).
However, CPL § 30.30(4)(g) provides that:
"In computing the time within which the people must be ready for trial
pursuant to subdivisions one and two, the following periods must be excluded: (g) 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."
Thus, it has been held that a formal continuance need not be requested or
granted and that, accordingly, the court may exclude time for speedy trial purposes when
the People can and do adequately demonstrate an exceptional circumstance even if the
People failed to request the exclusion on a particular court date. People v Goodman,
41 NY2d 888 (1977). Therefore, subject to periods of delay occasioned by
"exceptional circumstances" which are excludable pursuant to the terms of CPL §
30.30(4)(g) or which are otherwise excludable for CPL § 30.30 purposes, where the
highest crime charged is a class A misdemeanor and the People are not ready within 90
days of the commencement of a criminal action, it is ineluctable that a defendant's motion
to dismiss pursuant to CPL § 30.30 must be granted.
Although the defendant has the first instance burden of showing, through
sworn allegations of fact, that there has been an inexcusable delay beyond the time
allotted by the statute, once the defendant has made that showing, the People bear the
burden of going forward to demonstrate the existence of sufficient excludable time in
order to withstand a motion to dismiss. People v Santos, 68 NY2d 859, 861
(1986).
It is axiomatic that a criminal action is commenced by the filing of an
accusatory [*5]instrument with a criminal court. CPL
§ 100.05. The People are ready for trial when they communicate their actual
readiness in open court or serve on defense counsel and file with the court a statement of
actual readiness. People v Kendzia, 64 NY2d 331, 337 (1985). However, the
People cannot be ready for trial unless and until they have converted a misdemeanor
complaint into an information. See People v Caussade, 162 AD2d 4, 8 (2d Dept
1990). In order for a misdemeanor complaint to be converted into an information, the
factual portion of the instrument must contain "non-hearsay allegations that establish, if
true, every element of the crime charged and defendant's commission thereof." CPL
§ 100.40(1)(c); People v. Alejandro, 70 NY2d 133 (1987).
"There is no precise definition of what constitutes an exceptional
circumstance under CPL 30.30 (4)(g)" because it is impossible to "anticipate every
situation that might warrant tolling of the speedy trial time period." People v
Smietana, 98 NY2d 336, 341 (2002). However, "the term exceptional circumstance'
cannot be deemed to encompass a situation where the prosecution indefinitely holds open
a pending criminal matter, which is ripe for dismissal " People v Price, 61 AD3d
127, 131 (2d Dept 2009). Courts have held that when a defendant is prosecuted by a
corroborated complaint (i.e., an information) that generally the unavailability of a
material witness for medical reasons, such as illness or surgery, constitutes an
exceptional circumstance which may justify an excludable hearings and trial adjournment
for CPL § 30.30 purposes. Goodman, 41 NY2d 888; People v Lucero, 21 Misc 3d
412 (Crim Ct, New York County 2008). "Documented physical injury will establish
a complainant's unavailability." People v Mack, 176 Misc 2d 306 (Supreme Ct,
Bronx County 1998); See, e.g. People v Ali, 209 AD2d 227 (1st Dept 1994)
(complainant's surgery and recuperation); People v Pagano, 207 AD2d 685 (1st
Dept 1994) (medical affirmation); People v Pharr, 204 AD2d 126 (1st Dept
1994) (officer's injuries documented). In other words, and to be clear, courts have
recognized that when a complaint no longer contains uncorroborated allegations of
criminal conduct and the complaining witness is temporarily unavailable for medical
reasons, the People's failure to be ready when a matter is calendared for hearings and trial
occasioned by the complaining witness' unavailability should be excluded for CPL
§ 30.30 purposes. This is of course a very different question then whether the
People's lack of readiness should be excused for CPL § 30.30 purposes when the
People have been unable to corroborate the alleged criminal conduct of the defendant by
securing a supporting deposition of the complaining witness. It is worth noting that the
CPL provides for substantial different treatment of a defendant who is being prosecuted
with an accusatory instrument that is an information and an accusatory instrument that is
merely an uncorroborated complaint. For example, CPL §170.70 requires release of
a defendant from incarceration five days following arraignment where the People are
unable to establish non-hearsay allegations which if true establish every element of the
crime charged and that the defendant committed such crime. However, release is not
required where the People have converted a complaint into an information. Simply put,
the difference in treatment between an information and a complaint already codified in
the CPL must also be acknowledged in analyzing a defendant's speedy trial rights.
In the instant case, the defendant faces merely a number of naked
uncorroborated allegations of her alleged criminal conduct. No one has sworn under
penalties of perjury as to [*6]the defendant's alleged
criminal conduct. There remain significant questions as to whether the alleged conduct
ever in fact occurred — let alone whether the People can meet their burden of
proving that the defendant committed the charged offenses beyond a reasonable doubt. In
balancing the defendant's speedy trial rights against the People's right to investigate and
prosecute alleged criminal conduct, at this stage of the proceeding, the equities strongly
weigh in favor of the defendant's speedy trial rights. A defendant should not be required
to bear indefinitely the burden of an open criminal matter and the collateral consequences
of such an open criminal case based upon accusations that remain uncorroborated over a
lengthy period. This is not to say that there are no circumstances under which the time
that has elapsed where the People have failed to secure a corroborating affidavit should
be excused.[FN2]
Rather, the court only states that there must be a compelling reason for excusing the time
for CPL § 30.30 purposes and that otherwise the requirements of CPL §
30.30(4)(g) must be strictly met.
Under CPL § 30.30(4)(g), it is the People's burden to show (i) the
unavailability of a material witness (ii) due diligence in making that witness available
and (iii) a reasonable expectation of the witness's future availability. See People v Braithwaite, 28
Misc 3d 1224(A) (Crim Ct, Kings County 2010); Price, 61 AD3d 127;
People v Zirpola, 57 NY2d 706 (1982). Although the prosecutor's representation
is typically sufficient to establish the witness's unavailability due to medical reasons, due
diligence is not satisfied when the People merely state a naked (albeit valid) reason for
the unavailability or rely on hearsay information from family members that the witness is
unavailable. Braithwaite, 28 Misc 3d 1224(A). People v Chardon, 9 Misc 3d
1124(A) (Crim Ct, Kings County 2005). The People are also burdened to show that
they are in constant contact with the witness or the medical facility to ascertain when the
witness will become available. People v Familia-Morel, 151 Misc 2d 55 (Crim
Ct, Queens County 1991). In addition, the People must state what efforts, if any, they are
making to obtain the witness' presence. People v Betka, 45 Misc 3d 888 (Crim
Ct, Queens County 2013). "Due diligence under CPL § 30.30(4)(g), typically
requires, at a minimum, that the People keep themselves, and the court apprised, if
possible, of the expected return date' of the witness." Braithwaite, 28 Misc 3d at
6 citing People v Womack, 229 AD2d 304, 304-305 (1st Dept 1996). In other
words, the People cannot merely rely on a bare statement and wait in hope that the
witness will someday appear.
In this case, the People have been unable to demonstrate (i) the
unavailability of the complaining witness for the limited purpose of signing the
supporting deposition, (ii) due diligence in making the complaining witness available and
(iii) a reasonable expectation of the witness's future availability. Although the People
assert in the People's Affirmation that the ACS worker has indicated there should be no
contact with the complaining witness, this is not what the ACS Letter actually provides.
The ACS Letter indicates only that it would "not be advisable" to take the complaining
witness out of treatment. It does not provide that the complaining witness is unavailable
or that she could not come to court to testify for the purposes of hearings and trial or that
she is otherwise unavailable merely to sign a supporting deposition. Without a [*7]medical basis, or so much as a definitive statement by the
ACS worker that the complaining witness can not sign a supporting deposition, this court
can not equate "removal from treatment" with a brief interview at the residential facility
to sign a supporting deposition.[FN3]
Put another way, no evidence was presented to the court that the complaining witness'
treatment would in any way be discontinued or even compromised if the complaining
witness was asked to sign a supporting deposition or participated in a hearing or a trial of
limited duration. Rather, on the record before this court, the People have failed to
demonstrate that they have exercised due diligence in attempting to secure the
complaining witness' supporting deposition. No attempt has been made by the People by
letter (either to the complaining witness, her doctors or the treatment center), subpoena or
otherwise to secure the supporting deposition of the complaining witness. No attempt has
been made to be in constant contact with the complaining witness' doctors to determine
when the complaining witness may become available. Moreover, despite this court's
directive, the People have not secured an affirmation from the complaining witness'
doctor indicating that, although to date the complaining witness could not sign the
supporting deposition, she might be able to do so in the reasonably foreseeable future.
Finally, it appears, the People offered no expectation as to the complaining witness'
future availability for the purpose of signing a supporting deposition as the complaining
witness had no anticipated discharge date as of December 4, 2014 and the People have
offered no further information as to when the complaining witness may become
available. Accordingly, for CPL § 30.30 purposes, the entire period of 133 days
from July 24, 2014 until December 4, 2014 is chargeable as non-excludable time.
Head
align="center">>/Head
In sum, this court finds that the People are charged with 133 days of non-excludable
time. Accordingly, the defendant's motion to dismiss pursuant to CPL § 30.30(1)(b)
is granted.
The foregoing constitutes the decision and order of the court.
Dated: May 5, 2015_____________________________
Brooklyn, New YorkANDREW BORROK
J.C.C.
Footnotes
Footnote 1:The court notes that an
affirmation stating the criteria for admission to the treatment facility and a general
statement from either the facility or from the complaining witness' doctor that the
complaining witness was currently unable to sign a supporting deposition but would or
might be able to sign a supporting deposition (and without disclosing the complaining
witness' specific medical condition) would not run afoul of either the Health Insurance
Portability and Accountability Act of 1996 or the patient-doctor confidential relationship.
Footnote 2:To the extent that the
People may rely on People v Reaves, Crim Ct, Kings County, January 21, 2014,
Farber, J., Docket No. 2013KN055993, it is in apposite because although the actual
discharge date of the complaining witness was not actually known, the People were able
to demonstrate that they exercised due diligence by remaining in contact with, and
continued to follow up with, the ACS caseworker. In addition, an actual definite
discharge date was to be known within the reasonably foreseeable future.
Footnote 3:Obviously, if the
complaining witness were in a coma, lacked capacity or otherwise was unavailable due to
the alleged misconduct of the defendant, the court would be presented with a different
question which the court declines to answer at this time.