Opinion
No. 2014KN055008.
05-05-2015
The PEOPLE of the State of New York v. Anetra DOUGLAS, Defendant.
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.
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.
Opinion
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 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 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.
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.
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 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 N.Y.2d 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 N.Y.2d 859, 861 (1986).
It is axiomatic that a criminal action is commenced by the filing of an accusatory 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 N.Y.2d 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 A.D.2d 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 N.Y.2d 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 N.Y.2d 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 N.Y.2d 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 A.D.2d 227 (1st Dept 1994) (complainant's surgery and recuperation); People v. Pagano, 207 A.D.2d 685 (1st Dept 1994) (medical affirmation); People v. Pharr, 204 A.D.2d 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 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. 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.
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.
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 N.Y.2d 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 A.D.2d 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 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. 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.
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.
--------
CONCLUSION
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.