Opinion
Index No. 19-0448
09-29-2022
People of the State of New York v. Adonis Duarte, Defendant.
THE LEGAL AID SOCIETY OF WESTCHESTER COUNTY Attention: Lynda S. Visco, Esq. HON. MIRIAM E. ROCAH Westchester County District Attorney Attention: ADA Elliot B. Jacobson
Unpublished Opinion
THE LEGAL AID SOCIETY OF WESTCHESTER COUNTY Attention: Lynda S. Visco, Esq.
HON. MIRIAM E. ROCAH Westchester County District Attorney Attention: ADA Elliot B. Jacobson
DECISION AND ORDER
James A. McCarty Judge:
The following papers were considered in connection with the defendant's motion to dismiss on grounds of alleged violations of his entitlement to a speedy trial:
Motion to Dismiss
Affirmation in Opposition and Memorandum of Law 2-3
RELEVANT PROCEDURAL BACKGROUND
Adonis Duarte ("the defendant") stands accused under the within indictment of, among other crimes, criminal possession of stolen property in the third degree (Penal Law ("PL") §165.50), unlawful fleeing a police officer in a motor vehicle in the third degree (PL §270.25), reckless endangerment in the second degree (PL §120.20), and two counts of assault in the third degree (PL 120.00[2]). On July 31, 2019, the defendant was arraigned and entered a plea of not guilty to the charges contained in the within indictment (Motion to Dismiss at 1). The People announced their readiness for trial (Affirmation in Opposition at 3).
On August 14, 2019, the People served Consent Discovery and a Bill of Particulars at a preliminary court conference. Motion practice ensued. On October 28, 2019, this Court issued a Decision and Order granting the defendant's Omnibus Motion to the extent of ordering pre-trial suppression hearings (People v. Duarte, Decision and Order (Zuckerman, J.), October 28, 2019).
In anticipation of then impending changes to New York State's bail statute, on December 5, 2019, the defendant was released upon his own recognizance as the within indictment does not charge monetary bail eligible offenses (see, Affirmation in Opposition at 4). On December 6, 2019, the defendant was arraigned as a fugitive from justice and signed a waiver of extradition to return to the State of Connecticut (Id.).
Subsequent to the defendant having been extradited to Connecticut, the Westchester County District Attorney's Office ("WCDAO") made efforts to obtain outstanding discovery relating to the instant indictment. Specifically, the WCDAO requested documents and information from the City of Rye Police Department, the Westchester County Police Department ("WCPD"), and the New York State Police (Id. at 4). Of import, on or about December 17, 2019, the WCDAO sought CPL §§245.20(1)(k)(4) material from the WCPD (Id.). On December 24, 2019, Lt. Genesi informed the People of the WCPD's refusal to provide substantive responses to their CPL §245.20(1)(k)(4) inquiry (Id.). The People did receive discovery materials from the Rye City Police and the New York State Police, including responsive information to CPL §245.20(1)(k) inquiries (Id. at 4-5).
On January 9, 2020, the within matter came before the court again. On this date, the People filed a certificate of compliance and a statement of readiness with an attached discovery disclosure index which included, inter alia, three (3) computer discs containing, inter alia, a motor vehicle accident report, police reports including names, addresses, and telephone numbers for William Berkley and the other occupants of his vehicle (Id. at 5). The court (Warhit, J.) issued a warrant for the defendant who remained in custody in Connecticut (Id. at 5). Later this same day, a WCPD officer faxed the warrant and a notice of intent to extradite to the Bridgeport Correctional Facility where the defendant was being housed. On January 13, 2020, a member of the WCPD confirmed that the warrant for the defendant had been lodged (Id.).
On January 29, 2020, the People filed a supplemental certificate of compliance which included a statement of readiness, an annexed disclosure index, and an addendum memorializing the refusal of certain police witnesses to respond to the People's CPL §245.20(1)(k)(4) inquiry and the substantive response of one officer (Id.). On January 31, 2020, the defendant's counsel moved to strike the People's certificate of compliance (Motion to Dismiss at 2). This court (Warhit, J.) declined to take any action with respect to this application as the warrant for defendant remained active (Motion to Dismiss at 2).
On February 5, 2020, this matter came before the court again. On this date, the People informed the court that, based upon a conversation had with a prosecutor in the Connecticut prosecutor's office, ADA Daniel Fletcha was aware the State of Connecticut would not return the defendant to New York State until after his criminal matter in Connecticut was completed case (Affirmation in Opposition at 6).
Subsequently, members of the WCPD Warrant Squad remained in periodic contact with officials in the State of Connecticut (Id.). On each occasion, the officers confirmed the warrant for defendant remained lodged and verified that his case in Connecticut was ongoing (Id.). On March 28, 2022, the WCPD learned the defendant had been sentenced to five (5) years imprisonment in connection with his Connecticut criminal matter (Id.). On April 12, 2022, the People prepared the paperwork to commence extradition proceedings which was presented on May 13, 2022 (Id.). On June 27, 2022, the defendant was produced in this court to answer to the within indictment (Id.).
On July 27, 2022, the defense filed the within motion to dismiss. The defense contends the People violated the defendant's right to a "speedy trial" by failing to employ due diligence to return him to New York from Connecticut. Additionally, the defense contends the People violated defendant's right to a "speedy trial" as the certificate of compliance filed on January 9, 2020 does not include adequate CPL §245.20(1)(k)(4) discovery material. The People oppose the defense motion in its entirety.
DISCUSSION
A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court (see, CPL § 1.20[1] and [17]). The within criminal action was commenced on March 7, 2019, the date on which a felony complaint was filed in the Rye City Court (see, People v. Osgood, 52 N.Y.2d 37 [1980]).
Once a criminal action is pending, a defendant is entitled to a "speedy trial". Where, as here, a defendant is charged with at least one felony offense, the People are required to be ready for trial within six (6) months of having commenced the criminal action (CPL §§30.30[1](a)). Nevertheless, the six-month period is not absolute. Statutorily imposed exclusions apply to the calculation of time which include the time during which any motion is pending or under consideration and any time which lapses in relation to adjournments sought by the defense or granted with its consent (CPL §§ 30.30[4](a) and (b)). Significantly, and particularly relevant to this proceeding, any "period of delay resulting from the absence or unavailability of the defendant" is also properly excluded from the "speedy trial" calculation (CPL §§ 30.30[4](c)[i]).
By definition, a defendant is considered unavailable, "whenever his location is known but his presence for trial cannot be obtained by due diligence" (CPL § §30.30[4](c)]i]). Here, the defense contends that despite having knowledge of the defendant's whereabouts, the People failed to exercise due diligence to return the defendant from that location. This Court disagrees.
Where, as here, a defendant is incarcerated outside of the state, the People are required to make good faith and diligent efforts to secure his presence before the court (People v. Romeo, 12 N.Y.3d 51 [2009] citing People v. Hooey, 393 U.S. 374, 383 [1969]). It is well settled that, when a defendant is incarcerated outside the state, the diligent efforts requirement is satisfied by the People's filing of a detainer warrant, advising the holding state of their intention to extradite, and establishing that the state in which the defendant is located will not permit extradition (see, People v. Meyron, 28 A.D.3d 681 [2d Dept. 2006] citing (see People v Eldridge, 5 A.D.3d 282 [1st Dept. 2004]; People v Maisonet, 304 A.D.2d 674, 675 [2d Dept. 2003]); People v. Gonzalez, 653 N.Y.S.2d 321 [1stDept. 1997]).
It is undisputed that the WCPD filed the bench warrant for the defendant on the same day it was issued (Affirmation in Opposition at 5). Further, a WCPD warrant officer timely confirmed that the warrant had been received and lodged and, in addition, informed the Connecticut authorities of New York's intention to extradite (Id.). Thereafter, members of the WCPD Warrant Squad engaged in periodic telephone phone contact with the Connecticut authorities to confirm their knowledge of Westchester County's warrant and that the defendant's Connecticut prosecution remained ongoing (Id. at 6). An assistant district attorney had direct contact with a Connecticut prosecutor who unequivocally advised that Connecticut would not return the defendant to New York until the conclusion of his criminal matter in that state (Id. at 5). Promptly upon learning the defendant was available for extradition, the WCDAO acted to return him before this court (Id. at 6-7). Under the law, these efforts are sufficient to permit exclusion of the time the defendant was held in Connecticut for purposes of calculating "speedy trial" (see, Meyron, 28 A.D.3d 681 [2d Dept. 2006]; cf, People v. Lesley, 232 A.D.2d 259 [1st Dept. 1996](diligent efforts not found where the prosecution failed to make any efforts to return the defendant); People v. Melendez, 92 A.D.2d 904 [2d Dept. 1983](merely filing a detainer warrant is insufficient in an instance in which a defendant is held outside the prosecuting county but within New York State); People v. Wojciercjowski, 143 A.D.2d 164 [2d Dept. 1988](same); People v. Billups, 105 A.D.2d 795 [2d Dept. 1984](same)).
It is noteworthy that People v. Henningsen does not present a scenario "extremely similar to the facts at issue here" (cf., Motion to Dismiss at 4). Unlike the WCDAO, the prosecutors in Henningsen were under the mistaken belief that they "had no duty to act whatsoever before defendant was sentenced in Connecticut, because even if they had obtained a warrant prior to that date and promptly filed it at as a detainer with the Connecticut authorities, ... Connecticut would not have returned defendant to New York until after defendant was sentenced" (People v. Henningsen, 18 Misc.3d 1143(A), 1143A, (NY Co. Crim. Ct.). People v. Delacruz is also distinct from the instant case (184 Misc.2d 653 [NY Co. Ct. 2000]). Quite unlike the prosecutors in Delacruz who failed to file the detainer warrant for nine (9) months, here, the People caused the detainer warrant for the defendant to be filed on the same day it was issued (Affirmation in Opposition at 5). Accordingly, the period during which the defendant was detained in the State of Connecticut is properly excluded from the "speedy trial" calculation (CPL §§ 30.30[4](c)[i]).
Further, this court does not find the People's supplemental certificate of compliance and statement of readiness to be illusory. The law requires the People to "disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test all items and information that relate to the subject matter of the case [that] are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control (CPL §245.20(1) (emphasis added)). This requirement includes "[a]ll evidence and information . .. known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to . .. impeach the credibility of a testifying prosecution witness." (CPL §§245.20(1)(k)(iv)).
The defense contends that, as of the filing date of the within motion, the People had not provided contact information for the operator and passengers of the vehicle involved in the car accident alleged to have occurred in relation to the charged offenses (Motion to Dismiss at 10). Through their Affirmation in Opposition, the People soundly dispute this claim (Affirmation in Opposition at 5 and 14). As the defense has not filed a Reply Affirmation challenging the People's claim that this information was timely provided, this court credits the People's representations and presumes the defendant's assertion to the contrary was grounded in oversight and constitutes to a good-faith error.
Further, there is no merit to the defendant's claim, that "missing and/or insufficient impeachment questionnaires for [] law enforcement officers and agencies involved in the investigation into this case" renders the People's claim of readiness illusory (Id. at 10). Applicable statute dictates that prosecutors must "make a diligent, good faith effort to ascertain the existence of material and information discoverable" and "cause such information to be made available for discovery where it exists but it is not within the prosecutor's possession, custody, or control" (CPL §§ 245.20[2]). This requirement extends to "[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to impeach the credibility of a testifying prosecution witness." (CPL §§245.20(1)(k)(iv)).
Here, the defendant does not claim the People actually possess any information or material that tends to impeach the credibility of a witness who will testify that has not been disclosed. Moreover, the record clearly reflects the People's efforts to secure the allegedly missing police personnel records were rebuffed (Affirmation in Opposition at 4-5). The People made additional efforts to obtain responses to their inquiries which provided futile (Id. at 5). Thereupon, the People filed a Supplemental Certificate of Compliance which includes a CPL §§245.20(1)(k)(4) addendum that specifically states: "the police witnesses have declined to answer impeachment questions" (see, Supplemental Certificate of Compliance). This court finds that, under the facts of this case, the People made an honest effort to comply with the automatic discovery requirements (see, People v. Bruni, 7 Misc.3d 913 [Albany Co. Ct. 2021]).
Consequently, although information which is arguably discoverable has not been disclosed, as this court finds the People have made "diligent and good faith efforts" which are reasonable under the circumstances, this court exercises its discretion to deem the People ready for trial, upon the filing of their Supplemental Certificate of Compliance (CPL §§245.50(3). Furthermore, as the defense has not demonstrated prejudice based upon the alleged failure to disclosure, no other sanction is appropriate at this time (CPL §§245.80). Nevertheless, in accordance with their continuing disclosure obligation, the People are directed, prior to trial, to make additional efforts to acquire any previously undisclosed CPL §§245.20(1)(k)(4) materials and to disclose same (CPL §245.60).
Upon the foregoing, the defendant's motion to dismiss is denied in all respects.
This constitutes the Decision, Order, and Judgement of the Court.