People v Castello
2022 NY Slip Op 22007 [74 Misc 3d 451]
January 11, 2022
Kitsis, J.
Criminal Court of the City of New York, Kings County
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 9, 2022


[*1]
The People of the State of New York, Plaintiff,
v
Jamal Castello, Defendant.

Criminal Court of the City of New York, Kings County, January 11, 2022

APPEARANCES OF COUNSEL

The Legal Aid Society (Khadeya Penson of counsel) for defendant.

Eric Gonzalez, District Attorney (Keerthana Nunna of counsel), for plaintiff.

{**74 Misc 3d at 452} OPINION OF THE COURT
Michael D. Kitsis, J.

The defendant, charged with one count each of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and driving while ability impaired (Vehicle and Traffic Law § 1192 [1]), now moves for an order dismissing the information pursuant to CPL 30.30 (1) (b) and 170.30 (1) (e).

After careful review of the defendant's motion, the People's response, and all relevant legal authority, the motion to dismiss is denied. The court finds that 81 chargeable days have accrued since arraignment.

April 19, 2021-May 24, 2021

On April 19, 2021, the defendant was arraigned on a misdemeanor complaint on which the highest charge was an unclassified misdemeanor, punishable by a maximum imprisonment term of one year. Thus, the People had 90 days to be ready to proceed to trial. (CPL 30.30 [1] [b].) The People were not ready for trial and the case was adjourned to May 24, 2021, for conversion and for the People to complete their discovery obligations. The day of arraignment is excluded from the calculation. (General Construction Law § 20.)

35 chargeable days.

May 24, 2021-August 11, 2021

On May 24, 2021, the People had not completed discovery and were not ready for trial. The case was adjourned to August 11, 2021. On July 9, 2021, the People served and filed a certificate of compliance with their discovery obligations and a statement of readiness for trial. Therefore, the People are not charged for the remainder of the adjournment. (See People v Brown, 28 NY3d 392, 404 [2016].)

46 chargeable days.

August 11, 2021-August 20, 2021

On August 11, 2021, the case was heard and the court ordered the lawyers to confer regarding any outstanding discovery. The defendant was given leave to renew his argument [*2]regarding the sufficiency of the People's certificate of compliance after conferring with the assigned ADA and the case was adjourned to August 20, 2021. Because the People had previously made a valid statement of readiness for trial{**74 Misc 3d at 453} and the delay was not caused by the People, the adjournment is excluded.

0 chargeable days.

August 20, 2021-September 29, 2021

On August 20, 2021, the People maintained their readiness for trial. The case was adjourned for the defendant to challenge the People's certificate of compliance, for the defendant to serve and file his reciprocal certificate of compliance as required by CPL 245.50 (2), and to select a date for hearings and trial. Because the People were ready for trial and the adjournment was not caused by the People, but rather was for the defendant to file a challenge or his reciprocal certificate of compliance, the adjournment is excluded. (CPL 30.30 [4] [a].)

0 chargeable days.

September 29, 2021-October 28, 2021

On September 29, 2021, the case was adjourned to October 28, 2021, for final conference. The defendant had not filed his reciprocal certificate of compliance, as required by CPL 245.50 (2). The People had previously announced their readiness for trial and the delay was not caused by the People, so the adjournment is excluded.

0 chargeable days.

October 28, 2021-December 2, 2021

On October 28, 2021, the defendant ultimately raised no objections to the People's certificate of compliance and the court directed the defendant to serve and file his reciprocal certificate of compliance by the end of business that day. The case was adjourned to December 2, 2021, for hearings and trial. The People had previously announced their readiness for trial and the delay was not caused by the People, so the adjournment is excluded. Additionally, on November 30, 2021, the defendant filed a motion to dismiss. Delays for motion practice are excluded, so the period following November 30, 2021, is also excluded for that reason. (CPL 30.30 [4] [a].)

0 chargeable days.

December 2, 2021-December 7, 2021

On December 2, 2021, the court denied the defendant's motion made on November 30, 2021. The defendant's motion relied on a challenge to the sufficiency of the People's certificate of compliance, which was based on the failure to disclose underlying documents related to police officer misconduct pursuant to CPL 245.20 (1) (k). There is no binding appellate case law that{**74 Misc 3d at 454} requires the People to make these disclosures, and trial courts have split on the issue. In denying the defendant's motion, the court adhered to its previous ruling in People v McKinney (71 Misc 3d 1221[A], 2021 NY Slip Op 50456[U] [Crim Ct, Kings County 2021]).

The People were not ready for trial because the arresting officer, a necessary witness for the hearings on the defendant's motions to suppress, had recently begun paternity leave due to the unexpectedly early birth of his child.[FN1] The People had apprised the court and defense counsel [*3]of the officer's unavailability as soon as the People learned of it, and stated on the record that they expected the officer to return from leave on December 4, 2021.[FN2] The People requested five days and the case was adjourned to December 7, 2021, for hearings and trial.

The unavailability of a necessary witness can constitute an exceptional circumstance that warrants an exclusion of speedy trial time under CPL 30.30 (4) (g). (See People v Zirpola, 57 NY2d 706 [1982]; People v Blacks, 153 AD3d 720 [2d Dept 2017]; see also People v Goodman, 41 NY2d 888 [1977].) The People's unrefuted assertion that the officer was on paternity leave is sufficient to support the People's claim for an excludable adjournment. (See People v Alcequier, 15 AD3d 162, 163 [1st Dept 2005].) In addition, the People attached to their papers a letter from Lieutenant Anil George of the NYPD,{**74 Misc 3d at 455} dated December 14, 2021, stating that Police Officer Anthony Vargas had been on paternity leave since November 28, 2021, and was expected to return to work on December 14, 2021.[FN3] This constitutes sufficient "evidence to substantiate their claim of the officer's unavailability" and the People "were not required, in order to invoke the statutory exemption, to show that the witness was hospitalized, completely immobile or totally incapacitated." (People v Martinez, 268 AD2d 354, 354-355 [1st Dept 2000].) No amount of diligence by the People would have made the arresting officer available during the period in which he was on paternity leave. (Compare People v Mack, 300 AD2d 254 [1st Dept 2002].)

The defendant argues that the People should be charged for this adjournment because the People were not ready for trial and posits that paternity leave is not an exceptional circumstance. The court disagrees.

The fact that the arresting officer was on paternity leave and not, as was the case in People v Silverstri, on maternity leave is a distinction without a difference. (See People v Silverstri, 48 Misc 3d 810 [Crim Ct, NY County 2015].) As the court in Silverstri observed, "Some [*4]women recover faster than others, some infants require more care, some families need time to find a reputable and affordable childcare provider, and there may be other unforeseen issues." (Id. at 815.) Notably, only the first factor articulated by the Silverstri court refers specifically to the child-bearing parent. A witness's personal medical unavailability is not the only consideration; infant care and the need to find appropriate childcare, as well as assisting the child-bearing parent in their recovery,[FN4] are also appropriate concerns that justify paternity leave as well as maternity leave. Although{**74 Misc 3d at 456} a witness's personal medical unavailability can constitute an exceptional circumstance, the exclusion is not limited to that situation alone. (See People v Price, 14 NY3d 61 [2010]; People v Smietana, 98 NY2d 336 [2002].)

Other trial courts that have considered the issue have held that the paternity leave of a necessary witness constitutes an exceptional circumstance. (E.g. People v Massay, NYLJ 1202801035699, *1, 2017 NYLJ LEXIS 3028 [Crim Ct, Kings County 2017]; People v Lee, 15 Misc 3d 1137[A], 2007 NY Slip Op 51023[U] [Crim Ct, NY County 2007]; see also People v James, 170 AD3d 477 [1st Dept 2019] [excluding period of time witnesses, a married couple, were unavailable because they were caring for their newborn].) It is well documented that paternity leave "can promote parent-child bonding, improve outcomes for children, and even increase gender equity at home and at the workplace. Paid parental leave for fathers, as well as for mothers, provides a real advantage to working families." (United States Department of Labor, Policy Brief, Paternity Leave: Why Parental Leave For Fathers Is So Important For Working Families, available at www.dol.gov/sites/dolgov/files/OASP/legacy/files/PaternityBrief.pdf [last accessed Jan. 6, 2022]; see also Nathaniel Popper, Paternity Leave Has Long-Lasting Benefits. So Why Don't More American Men Take It?, NY Times, Apr. 17, 2020, available at nytimes.com/2020/04/17/parenting/paternity-leave.html [last accessed Jan. 10, 2022].) While the defendant's speedy trial rights are not to be minimized, this court finds no countervailing consideration that outweighs the significant societal interest parental leave promotes, and the court sees no principled basis to hold that maternity leave, but not paternity leave, constitutes an exceptional circumstance.

The People have established an exclusion pursuant to CPL 30.30 (4) (g) in that the arresting officer was a necessary witness; he was unavailable as a result of his paternity leave; and "during the period of unavailability, [the People] diligently kept themselves and the court apprised of [his] expected return date." (People v Womack, 229 AD2d 304, 304 [1st Dept 1996],{**74 Misc 3d at 457}[*5]affd 90 NY2d 974 [1997].) Therefore, the adjournment is excluded. (See People v Goodman, 41 NY2d 888 [1977].)[FN5]

0 chargeable days.

December 7, 2021-December 14, 2021

On December 7, 2021, the People were not ready for trial because the arresting officer remained out on paternity leave. The fact that the People required other witnesses, whose availability was not subject to an exclusion, is immaterial; the People were unable to proceed without the arresting officer. Since no amount of diligence on the part of the People to produce additional witnesses to court would have negated the need for delay caused by the arresting officer's unavailability, the People were not required to make further efforts to produce additional witnesses. (Compare People v Pressley, 115 AD2d 228 [4th Dept 1985].) The court will not require the People to bring witnesses to court on a date when the People are unable to proceed because a necessary witness remains unavailable. The case was adjourned to December 14, 2021, for hearings and trial. The adjournment is excluded pursuant to CPL 30.30 (4) (g).

0 chargeable days.

December 14, 2021-January 11, 2022

On December 14, 2021, the People were not ready for trial because the arresting officer was still on paternity leave and expected to return on December 20, 2021.[FN6] The People stated they could go forward with portions of the hearing, but that the arresting officer's testimony was required for the People to meet their burden with respect to the Dunaway issue. Defense counsel stated she would file a motion to dismiss, and she did file the instant motion that same day. The People were directed to respond to the motion by December 27, 2021; due to the holiday recess, the case was adjourned to January 11, 2022, for{**74 Misc 3d at 458} decision on the motion and for hearings and trial. Delays for motion practice are excludable pursuant to CPL 30.30 (4) (a).

0 chargeable days.

Since the People are within their allowed speedy trial time, the defendant's motion to dismiss is denied.



Footnotes


Footnote 1:The People assert that the arresting officer is required for the People to proceed on the defendant's motion for a Wade/Dunaway hearing. (See People v Malinsky, 15 NY2d 86 [1965] [People have the burden of going forward with evidence on a motion to suppress].) The case is unable to proceed to trial until the suppression motion is decided. (Compare People v McKenna, 76 NY2d 59, 64 [1990].) The defendant is entitled to a decision on the suppression issue; consequently, the People must be given an opportunity to go forward with the evidence they need to meet their burden at that hearing. It would be impractical to require the People to be ready for trial and not permit an exclusion when the only barrier to trial is the defendant's suppression motion and the unavailability of a witness required for that motion. Nor are the People required to allege that the unavailable witness is necessary to the ultimate question of innocence or guilt. (See People v Bullock, 136 AD3d 518 [1st Dept 2016]; People v McLeod, 281 AD2d 325 [1st Dept 2001].) Therefore, the fact that the People have established the necessity of the arresting officer to the suppression hearing but not the trial does not affect the applicability of the exceptional circumstance exception of CPL 30.30 (4) (g) to this case.

Footnote 2:The People's request was based on the initial end date of the officer's paternity leave. While on leave, the officer briefly extended his absence and so the People renewed their application for an adjournment on the following court date.

Footnote 3:Additionally, the fact that the arresting officer went on paternity leave on November 28, 2021, does not render the People's July 9, 2021 statement of readiness for trial illusory. There is no evidence that the officer would not have been available on July 9, 2021, or that the People were not otherwise ready for trial on that date.

Footnote 4:A witness's need to care for a family member as a result of the family member's medical condition has been deemed an exceptional circumstance that renders the witness unavailable to the People. (See e.g. People v Barnett, 158 AD3d 1279 [4th Dept 2018] [exclude day witness's father had surgery]; People v McFaline, 167 AD3d 465 [1st Dept 2018] [exclude time witness caring for ill father]; People v Harden, 6 AD3d 181 [1st Dept 2004] [exclude time witness absent due to his mother's hospitalization]; People v Chavis, 238 AD2d 349, 350 [2d Dept 1997] [exclude time witness was "needed at home as the sole care-giver of his cancer-stricken father"], revd on other grounds 91 NY2d 500 [1998]; People v Rodriguez, 212 AD2d 368 [1st Dept 1995] [exclude time witness caring for ill father]; People v Familia-Morel, 151 Misc 2d 55 [Crim Ct, Queens County 1991] [exclude time witness's infant daughter hospitalized]; see also People v Lopez, 2 AD3d 234 [1st Dept 2003] [exclude time witness unavailable due to family tragedy].)

Footnote 5:It is also notable that Police Officer Vargas's paternity leave is the simplest of situations. The leave came about due to the unexpected early birth of his child. Thus, the People could not have anticipated their witness's absence ahead of time. Moreover, the length of the officer's paternity leave was brief, indicating that the leave was taken on an emergency basis. (Compare People v Lucero, 21 Misc 3d 412 [Crim Ct, NY County 2008].) The court need not determine whether a more prolonged, anticipated leave for childcare would be similarly excludable.

Footnote 6:Although the letter from Lieutenant George indicated that the officer was expected to return to work on December 14, 2021, the court need not decide whether the CPL 30.30 (4) (g) exception continued to apply, because the defendant filed the instant motion on December 14, 2021.