Opinion
No. 2014NY070692.
01-07-2016
The PEOPLE of the State of New York v. Niaz KHAN, Defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Melissa Hindman, for the People. The Legal Aid Society by Amelia P. McGovern, Esq., for the Defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Melissa Hindman, for the People.
The Legal Aid Society by Amelia P. McGovern, Esq., for the Defendant.
STEVEN M. STATSINGER, J.
Defendant, charged with two counts of Assault in the Third Degree, in violation of Penal Law § 120.00(1) and (2), Attempted Assault in the Third Degree, in violation of Penal Law §§ 110/120.00(1), and Harassment in the Second Degree, in violation of Penal Law § 240.26(1), moves for an order dismissing the Information pursuant to CPL § 30.30. The Court has reviewed the entries and documents in the court file, the parties' motion papers, and the relevant statutes and case law. For the reasons discussed below, the Court finds that 88 days are chargeable to the People. Accordingly, defendant's motion to dismiss is DENIED.
I. FACTUAL BACKGROUND
A. The Allegations
According to the accusatory instrument, the defendant struck his girlfriend in the face with a closed fist, causing bruising, redness, lacerations, swelling and substantial pain.
B. Legal Proceedings
Defendant was arraigned on September 13, 2014, on an accusatory instrument charging him with two counts of Assault in the Third Degree, in violation of Penal Law § 120.00(1) and (2), Attempted Assault in the Third Degree, in violation of Penal Law §§ 110/120.00(1), and Harassment in the Second Degree, in violation of Penal Law § 240.26(1). The court released the defendant on his own recognizance and adjourned the case to November 5, 2014, for conversion. Subsequent calendar appearances took place on January 8, 2015, March 24, 2015, June 30, 2015, September 10, 2015, and October 27, 2015, on which date it emerged that the defendant had filed the instant motion on October 15. The People were directed to file a response by November 10, although they did not do so until December 2. The matter has been sub judice since then.
II. DISCUSSION
Defendant is charged with "at least one ... misdemeanor punishable by a sentence of imprisonment of more than three months." CPL § 30.30(1)(b). Thus, his motion to dismiss must be granted if the People were not ready for trial within 90 chargeable days of the commencement of the action. Id. Here, there were 6 court dates from the commencement of the action through the filing of the motion to dismiss. Those events spanned 362 calendar days, and 88 of those days are chargeable to the People. The motion to dismiss is accordingly denied.
A. The Speedy Trial Calculations
1. September 13, 2014, to November 5, 2014: 53 Days Chargeable
Criminal Procedure Law § 1.20(17) provides that "a criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court." In this case, that event occurred at defendant's arraignment on September 13, 2014. The speedy trial clock started on the next day. People v. Stiles, 70 N.Y.2d 765, 767 (1987). At the arraignment, the Court adjourned the case to November 5 for a supporting deposition. Accordingly, 53 days are chargeable to the People. The People concede these 53 days.
2. November 5, 2014, to January 8, 2015: 0 Days Chargeable
On November 5, 2014, the People filed a Domestic Incident Report ("DIR") thereby converting the misdemeanor complaint to an information. The defense was directed to file motions by December 10, and the case was adjourned to January 8, 2015, for response and decision.
For this period, 0 days are chargeable to the People. CPL § 30.30(4)(a) ( "reasonable period of delay resulting from other proceedings concerning the defendant, including ... pre-trial motions" is excludable).
3. January 8, 2015, to March 24, 2015: 0 Days Chargeable
On January 8, 2015, the Court denied defendant's motion to dismiss for facial insufficiency, and ordered a Huntley/Dunaway hearing. The court adjourned the case to March 24 for hearing and trial. This period is excludable under People v. Green, 90 A.D.2d 705, 706 (1st Dept 1982), under which a "reasonable period" after the decision on pretrial motions is excludable, to give the People time to prepare. See also People v. Forbes, 7 AD3d 473, 474 (1st Dept 2004) ; People v. Dean, 45 N.Y.2d 651, 657 (1978). Accordingly, 0 days are chargeable for this period.
4. March 24, 2015, to June 30, 2015: 0 Days Chargeable
5. June 30, 2015, to September 10, 2015: 0 Days Chargeable
6. September 10, 2015, to October 27, 2015: 35 Days Chargeable
The defense contends that all time "from March 24, 2015, through [the] date of the motion, October 1[5]" should be chargeable. McGovern Aff. at ¶ 6. The Court agrees as to one adjournment, but not the others.
On March 24, 2015, the People informed the Court that the complaining witness, who was in Wisconsin, was in the middle of a high risk pregnancy, and had been advised by her doctor not to travel. The People indicated that her due date was in early June, and based on this information, they could not be ready for trial before June 30. The Court adjourned the case to June 30 for hearing and trial.
On June 30, 2015, the People answered "not ready" for trial because the complaining witness had the baby, but the baby died. The People explained that the complaining witness had medical complications, and that they expected her to remain out of state dealing with those issues until the end of July or early August. The Court adjourned the case to September 10 for hearing and trial.
On September 10,2015, the People answered "not ready" because the complainant's elderly mother had fallen, broken her shoulder, and was having surgery the next day. The complaining witness had remained out of state in order to help her mother. The People stated that the complainant would be available in early October, but that the assigned assistant district attorney had a couple of weeks of vacation scheduled in October. The Court adjourned the case to October 27 for hearing and trial. The People stated that they would file a Certificate of Readiness ("COR") when the witness became available. A COR was never filed; however, the defense filed this motion on October 15, 2015, which had the effect of stopping the speedy trial clock. CPL § 30.30(4)(a).
The People argue that the entire period from March 24 to October 27 is excludable. They cite first the complaining witness' unavailability due to her own medical complications, which prohibited her from traveling, and then the need for her to assist her mother who had fallen and needed surgery. See CPL § 30.30(4)(g). The Court finds that only the delay arising from the complainant's own medical issues, that is, from March 25 to September 10, is excludable.
During this period, the People acted with appropriate diligence in attempting to secure the complainant's presence for trial. On each of the relevant calendar calls the People detailed the nature of the complainant's condition and kept the Court apprised of her progress. As such, the period during which the complaining witness was unable to travel due to the high risk pregnancy and its aftermath is excludable as an exceptional circumstance under CPL § 30.30(4)(g). See People v. Goodman, 41 N.Y.2d 888, 889 (1977) ; People v. Womack, 229 A.D.2d 304 (1st Dept 1996), aff'd, 90 N.Y.2d 974 (1997) ; see also People v. Hernandez, 268 A.D.2d 344 (1st Dept 2000) ; People v. Celestino, 201 A.D.2d 91 (1st Dept 1994). "It hardly needs stating that the death of a child is devastating. If the circumstances involved in the birth of a child justify the exclusion of time ... surely the death of a child does." People v. Valentin, 184 Misc.2d 942, 944 (Sup.Ct. Bronx County 2000).
In addition, "[t]he representations" of the prosecutor, as an officer of the court, "constituted sufficient proof of" the complainant's "unavailability and the People were not obligated to prove it by other means." People v. Bailey, 221 A.D.2d 296, 297 (1st Dept 1995), citation omitted. See also Hernandez, 268 A.D.2d at 345.
The Court, therefore, finds that the period from March 24, 2015 to September 10, 2015, is excludable under CPL § 30.30(4)(g).
However, the period from September 10 to October 15 during which the complaining witness was absent from the state due to her mother's injury is not excludable under CPL § 30.30(4)(g) in this case, even though the Court recognizes that a parent's illness can sometimes constitute an exceptional circumstance. See People v. Harden, 6 AD3d 181, 182 (1st Dept.2004) (victim's absence due to mother's hospitalization in Pakistan constituted an exceptional circumstance under CPL 30.30[4][g] ). This is so for two reasons.
First, the bare allegation that the complainant's mother was having shoulder surgery and that the complainant needed to help care for her is, by itself, too vague to constitute an exceptional circumstance. The People explained neither the anticipated degree to which the complainant's mother would be debilitated by the operation nor the expected duration of her recovery. Nor did they represent that there were no other family members who could assist the mother for the few days it would take to bring the complainant to court so that she could testify.
This case therefore stands in stark contrast to those where a family member's illness was found to be an exceptional circumstance. For example, People v. Lee, 15 Misc.3d 1137(A) (Crim Ct N.Y. County 2007), excluded time under § 30.30(4)(g) where "the wife of a police witness had given birth prematurely to twins during the preceding weekend, the babies were in intensive care at the hospital and, as a result of this medical crisis, the officer would be unavailable for the next two weeks." See alsoPeople v. Familia–Morel, 151 Misc.2d 55, 570 N.Y.S.2d 895 (Crim Ct Queens County 1991) (police officer's infant daughter was hospitalized with spinal meningitis a "sometimes fatal disease" for 15 days, and the officer was at her bedside 12 hours a day during this period).
In addition, for this period, the People have failed to establish that they acted with appropriate diligence. They never identified the date on which the complaining witness either would become or did become available: Not at a calendar call, not by filing a COR, and not in their response to this motion. "Whether the [complaining witness] was at any time unavailable ... and what the People did to make [her] available are questions of fact on which the People have the burden of proof (citation omitted)...." People v. Zirpola, 57 N.Y.2d 706, 708 (1982). The People here failed utterly to meet this burden of proof.
Accordingly, for these reasons, the People are charged with the 35–day period from September 10, 2015, to October 15, the date upon which this motion was filed.
7. October 27, 2015, to January 7, 2016: 0 Days Chargeable
On October 27, 2015, the People answered "not ready" for trial; however, the defense had filed this motion on October 15, which had the effect of stopping the speedy trial clock. CPL § 30.30(4)(a). The People were directed to file a response by November 10, and the case was adjourned to January 7, 2016, for the decision of the Court. Accordingly, 0 days are chargeable for this period.
Conclusion
As detailed above, 88 days (53 + 35 = 88) are chargeable to the People. Defendant's motion to dismiss pursuant to CPL § 30.30 is accordingly denied.
IV. CONCLUSION
Since 88 days of speedy trial time are chargeable to the People, defendant's motion to dismiss is denied.
This constitutes the Decision and Order of the Court.