The People of
the State of New York,
against
Kawame Frimpong, Defendant.
|
2013BX045379
The People - Robert T. Johnson, District Attorney, Bronx County by
Andrew Kluger, Assistant District Attorney
Defendant — The Bronx Defenders by Anne Dean
Armando Montano, J.
Defendant was originally charged with the unclassified misdemeanor of Driving
While Intoxicated (VTL §§ 1192[3]) and the traffic infraction of Driving
While Ability Impaired by Alcohol (VTL § 1192[1]). By superseding information,
dated September 12, 2013, defendant is charged with the unclassified misdemeanors of
Driving While Intoxicated (VTL §§ 1192[2] and [3]) and the traffic infraction
of Driving While Ability Impaired by Alcohol (VTL § 1192[1]).
Defendant moves pursuant to CPL §§ 170.30(1)(e) and 30.30 to
dismiss the accusatory instrument on speedy trial grounds.
The top count of the accusatory instrument is an unclassified misdemeanor,
which is punishable by a sentence of imprisonment of up to one year. PL §
55.10(2)(c); VTL § 1193(1)(b). Pursuant to CPL § 30.30(1)(b), the People
must be ready for trial within 90 days of the commencement of a criminal action where
the defendant is charged with one or more offenses, at least one of which is a
misdemeanor punishable by sentence of imprisonment of more than three months, and
none of which is a felony. For CPL § 30.30 purposes, in order for the People to be
"ready for trial", the People must satisfy two elements. First, there must be a
communication of readiness by the People which appears on the trial court's record by
way of either a statement of readiness in open court or a written notice of readiness sent
by the prosecutor to both defense counsel and the court clerk. See, People v.
Kendzia, 64 NY2d 331 (1985). Second, the People must declare their readiness when
there are in fact ready to proceed to trial. Id. at 337. "A statement of readiness at a
time when the People are not actually ready is illusory and insufficient to stop the
running of the speedy trial clock." People v. England, 84 NY2d 1, 4 (1994). The
test is whether the People "have done all that is required of them to bring the case to a
point where it may be tried." Id.
In order to satisfy his or her initial burden, the defendant must demonstrate
that the [*2]People failed to declare their readiness within
the statutorily prescribed time period. People v. Luperon, 85 NY2d 71 (1995).
Once the defendant meets his or her initial burden, the onus is upon the People to
establish sufficient excludable delay to withstand dismissal. People v. Santos, 68
NY2d 859 (1986); People v. Berkowitz, 50 NY2d 333 (1980). "Whether the
People have satisfied [their 30.30] obligation is generally determined by computing the
time elapsed between the filing of the first accusatory instrument and the People's
declaration of readiness, subtracting any periods of delay that are excludable under the
terms of the statute and then adding to the result any postreadiness periods of delay that
are actually attributable to the People and are ineligible for an exclusion." People v.
Cortes, 80 NY2d 201, 208 (1992).
On August 5, 2013, defendant was arraigned on a misdemeanor complaint
and released on his own recognizance. The People stated that they were ready as to all
counts. The Court indicated that the People were not ready and needed to submit a
laboratory report for purposes of conversion as the defendant had submitted to a
chemical test analysis of his blood. The case was adjourned to September 30, 2013 for
full conversion.
On September 13, 2013, prior to the next adjourn date, the People filed with
the Court and served on defense counsel an off-calendar statement of readiness, a
superseding information charging defendant with the unclassified misdemeanors of
Driving While Intoxicated (VTL §§ 1192[2] and [3]) and the traffic infraction
of Driving While Ability Impaired by Alcohol (VTL § 1192[1]), and a laboratory
report analyzing defendant's blood alcohol content.
Defendant argues that the People must be charged with 39 days for the time
period from August 5, 2013 to September 30, 2013 while the complaint remained
unconverted. The People argue that the complaint was converted at arraignment when
they declared their readiness. The People further argue that no laboratory report was
needed at this point since defendant was not charged with any offense which required the
results of a blood test.
This Court is not bound by the calendar notations or interim markings made
by other judges when determining whether a specific adjournment is includable.
Berkowitz, 50 NY2d 333. At arraignment, defendant was not charged with VTL
§ 1192(2), which requires a showing that defendant operated a motor vehicle while
having at least .08 of one per centum by weight of alcohol in their blood. As such, a
laboratory report was not needed to convert the charges in the complaint, to wit: VTL
§§ 1192[1] and [3]. Therefore, the period of time from August 5, 2013 to
September 30, 2013 is excludable. 0 days included.
On September 30, 2013, defendant was arraigned on the superseding
information and the People stated that they were ready. A motion schedule was set and
the case was adjourned to December 19, 2014 for response and decision. Delays due to
motion practice are excludable. See, People v. Brown, 227 AD2d 237
(1st Dept. 1999); CPL § 30.30(4)(a). Therefore, the period of time from September
30, 2013 to December 19, 2013 is excludable. 0 days included.
On December 19, 2013, the Court ordered Huntley/Dunaway/Johnson
hearings. The case was adjourned to March 27, 2014 for hearings and trial. The People
are entitled to a reasonable adjournment in order to prepare for trial after motions are
decided and a case is adjourned for trial. People v. Douglas, 156 AD2d 173 (1st
Dept. 1989); People v. Green, 90 AD2d 705 (1st Dept. 1982). As such, the entire
time period from December 19, 2013 to March 27, 2014 is excludable. 0 days
included.
On March 27, 2014, the parties consented to adjourn the case to May 27,
2014 for hearings and trial. Therefore, the entire time period from March 27, 2014 to
May 27, 2014 is excludable. 0 days included.
On May 27, 2014, the People stated that they were not ready as the assigned
Assistant District Attorney was working the night schedule. The People requested an
adjourn date of June 2, 2014. The case was adjourned to June 18, 2014 for hearings and
trial. In a post-readiness posture, the People are only charged with the amount of time
requested. See, People v. Stirrup, 91 NY2d 434 (1998); People ex rel.
Skyes v. Mitchell, 184 AD2d 466 (1st Dept. 1992). This Court charges the People
with 6 days for the time period from May 27, 2014 to June 18, 2014. 6 days
included.
On June 18, 2014, the People stated that they were not ready and requested
an adjourn date of June 24, 2014. The case was adjourned to August 14, 2014 for
hearings and trial. Being in a post-readiness posture, the People are only charged with the
actual number of days requested. This Court charges the People with 6 days for the time
period from June 18, 2014 to August 14, 2014. 6 days included.
On August 14, 2014, the People stated that they were not ready as the
arresting officer, Officer Brian McGee, was injured in the line of duty and was
unavailable to testify. The case was adjourned to October 16, 2014 for hearings and trial.
Prior to the next adjourn date, on August 21, 2014, the People filed with the Court and
served on defense counsel an off-calendar statement of readiness. The cover letter
enclosing the People's statement of readiness indicates that Officer McGee appeared at
the Office of the District Attorney on August 15, 2014 and informed the People that "his
surgery and indeterminate leave of absence had been postponed to early September 2014
and as such, he would be available for trial from August 15, 2014, up until that time."
Accordingly, this Court charges the People with 7 days for the period of time from
August 14, 2014 to October 16, 2014. 7 days included.
On October 16, 2014, the People stated that they were not ready as Officer
McGee was unavailable to testify as he was out of line duty. A notation on the action
sheet indicates that Officer McGee had undergone surgery two weeks prior. The case
was adjourned to December 15, 2014 for hearings and trial.
Defendant asserts that the People must be charged with 60 days for the
period of time from October 16, 2014 to December 15, 2014 because they have failed to
demonstrate that Officer McGee's unavailability to testify should be excluded as an
"exceptional circumstance" under CPL § 30.30(4)(g). Defendant further asserts that
the People have failed to support their assertion that the arresting officer was unavailable
within the meaning of CPL § 30.30(4)(g) by way of medical records or affidavits
from medical professionals.
In opposition, the People argue that they have satisfied their burden of
demonstrating the existence of "exceptional circumstances" pursuant to CPL §
30.30(4)(g) to warrant the exclusion of a period of delay. The People assert that the
testimony of Officer McGee is material and necessary to establish each element of the
offenses charged. The People further assert that the unavailability of a principal
prosecution witness due to medical reasons is a sufficient exceptional circumstance,
which does not require the submission of medical documentation. Where, as here, the
People's representation on the record as to the arresting officer's unavailability due to his
shoulder surgery was undisputed by defendant, the People contend that the Court is
entitled to rely on their representations as to the officer's physical condition and resultant
inability to testify.
In support, the People submit a pre-printed form letter dated December 19,
2014, signed by Sgt. Hector Alicea, a Police Officer assigned to the Office of the Police
Surgeon, Bronx Health Care Facility. The top portion of the letter has spaces provided
where a check mark can [*3]be placed to indicate
whether an officer is able to appear for Court. Notably, the top portion of the form letter
is crossed out and there is a handwritten notation on the bottom of the letter indicating
that Officer McGee was on sick status from September 20, 2014 to October 31, 2014.
The People also submit a letter dated April 16, 2015, signed by Guillermina Tavares,
Administrative Sergeant, in which she writes the following: "This letter is to inform you
that PO Mcgee [sic] was Line of Duty Sick from September 20, 2014 to October
31, 2014."
CPL § 30.30(4)(g) provides that the People may exclude:
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 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 .
The statute does not define exactly what constitutes an exceptional
circumstance. However, "where the People are truly unable to take necessary steps to
prepare for trial and announce readiness due to circumstances which are beyond their
control, the CPL 30.30 clock must stop temporarily while those circumstances persist."
People v. Smietana, 98 NY2d 336, 341 (2002). The unavailability of a necessary
prosecution witness due to medical reasons is a sufficient exceptional circumstance
justifying an exclusion. See, People v. Goodman, 41 NY2d 888 (1977);
People v. McLeod, 281 AD2d 325 (1st Dept. 2001); People v. Celestino,
201 AD2d 91 (1st Dept. 1994).
Here, defendant does not contest that the testimony of the arresting officer, Officer
McGee, is material to the prosecution's case. Rather, defendant challenges the sufficiency
of proof that the People have submitted to substantiate their claim that Officer McGee
was unavailable to testify due to medical reasons for two months.
Although the People's representations are generally sufficient to establish a
witness' unavailability due to medical reasons (People v. Alcequier, 15 AD3d 162 [1st Dept. 2005];
People v. Hernandez, 268 AD2d 344 [1st Dept.2000]),where there is a factual
dispute, the People bear the burden of demonstrating that the witness is unavailable
within the meaning of CPL § 30.30(4)(g). People v. Zirpola, 57 NY2d 706
(1982); People v. Martinez, 268 AD2d 354 (1st Dept. 2000). This Court finds
that the People have failed to meet their burden as their submissions are insufficient to
establish Officer McGee's unavailability for the contested time period from October 16,
2014 to December 15, 2014.
In their papers in opposition, the People assert that they made "a substantial
record on the October 16, 2014 adjourn date as to the arresting officer's medical status."
Affirmation of ADA Andrew Kluger, at 8. There is no support in the record for this
assertion. The action sheet only indicates that the officer had undergone surgery two
weeks prior. There is no indication as to the officer's physical condition, his expected
recovery time, or when he would be able to appear in Court.
In addition, the two letters submitted by the People fail to shed any light into
Officer McGee's physical condition during the contested time period. First, there is no
indication that either Sgt. Alicea or Sgt. Tavares is a licensed medical professional, has
any sort of medical training, or consulted with a physician involved with Officer
McGee's care so as to allow them to render a competent opinion as to the officer's
medical condition during the relevant time period. Second, neither letter establishes that
Officer McGee was unavailable to testify for two months. [*4]The letters merely indicate that Officer McGee was out on
sick leave from September 20, 2014 to October 31, 2014. Being out on sick leave is not
the equivalent of being physically unable to appear in Court due to medical reasons.
Absent sufficient documentation evidencing Officer McGee's physical condition and the
resultant inability to appear in Court, such as certified medical records, an affirmation
from the treating physician, or an affidavit from Officer McGee himself, this Court finds
the People's representations concerning the arresting officer's unavailability to be
unavailing.
Furthermore, the People have failed to demonstrate due diligence on their part as
required by CPL § 30.30(4)(g). Due diligence requires, at the very least, that the
People keep themselves and the Court apprised, if possible, of the witness' expected
return date. People v. Womack, 229 AD2d 304 (1st Dept. 1996) aff'd 90
NY2d 974 (1997). The People have failed to indicate if there were any established
notification procedures so that they could be notified as to when Officer McGee had
returned to work or when he would be available to testify. The inadequacy of such
procedures, if any, is confirmed by the fact that on January 12, 2015, the People had to
clarify the record and indicate that they had misinformed the Court on the previous
appearance date, December 15, 2014, when they stated that Officer McGee was still on
out of line duty when he had in fact returned to work on October 31, 2014.
Based on the foregoing, this Court charges the People with 60 days for the
time period from October 16, 2014 to December 15, 2014. 60 days included.
On December 15, 2014, the People stated that they were not ready as Officer
McGee was still on out of line duty. The People did not request a specific adjourn date.
The case was adjourned to January 12, 2015. On December 22, 2014, prior to the next
adjourn date, the People filed with the Court and served on defense counsel a statement
of readiness. This Court charges the People with 7 days for the period of time from
December 15, 2014 to January 12, 2015 7 days included.
On January 12, 2015, the People stated that they were ready; however,
defendant was not ready. The People also informed the Court that Officer McGee had
returned to work on October 31, 2014. As such, the People stated that Officer McGee
was not out of line duty on December 15, 2014 as previously indicated. Nonetheless, the
People would not have been ready on December 15, 2014 as Officer McGee was not
notified to appear on that date. The case was adjourned to February 19, 2015 for hearings
and trial. This Court charges the People with 0 days for the period of time from January
12, 2015 to February 19, 2015. 0 days included.
On February 19, 2015, the People stated that they were ready. The case was
adjourned to March 12, 2015 for hearings and trial. This Court charges the People with 0
days for the period of time from February 19, 2015 to March 12, 2015. 0 days
included.
On March 12, 2015, the People again stated that they were ready. Defense
counsel informed the Court of her intention to file the instant motion. The case was
adjourned to April 17, 2015 for the submission of the People's response. On April 17,
2015, defense counsel indicated to the Court that she had filed the instant motion on
March 27, 2015. The Court directed the People to respond to the motion on or before
May 1, 2015. The case was adjourned to May 29, 2015 for response and decision. Delays
due to motion practice are excludable. Therefore, the period of time from March 12,
2015 to the present is excludable. 0 days included.
As stated above, this Court charges the People with 0 days for the period of
time from August 15, 2013 to September 30, 2013, 0 days for the period of time from
September 30, 2013 to December 19, 2013, 0 days for the period of time from December
19, 2013 to March 27, [*5]2014, 0 days for the period of
time from March 27, 2013 to May 27 2014, 6 days for the period of time from May 27,
2014 to June 18, 2014, 6 days for the period of time from June 18, 2014 to August 14,
2014, 7 days for the period of time from August 14, 2014 to October 16, 2014, 60 days
for the period of time from October 16, 2014 to December 15, 2014, 7 days for the
period of time from December 15, 2014 to January 12, 2015, 0 days for the period of
time from January 12, 2015 to February 19, 2015, 0 days for the period of time from days
for the period of time from February 25, 2015 to March 31, 2015, and 0 days for the
period of time from March 31, 2015 to the present. In sum, there is a total of 86 days of
includable time. The People have not exceeded the statutorily prescribed time of 90 days.
Therefore, defendant's motion to dismiss pursuant to CPL § 30.30 is denied.
Accordingly, the motion by defendant to dismiss the accusatory instrument
on speedy trial grounds is denied.
This constitutes the decision and order of this Court.
Dated:May 28, 2015
Bronx, New York
_______________________________
Hon. Armando Montano