Opinion
XXXXX
12-27-2022
PEOPLE of the State of New York, v. Travis MARLING, Defendant.
Julie Cianca, Esq., Monroe County Public Defender [ Andrew Kyg, Esq. of counsel] for the Defendant Sandra Doorley, Esq., District Attorney [Mikki Pelkey, Esq. of counsel] for the People
Julie Cianca, Esq., Monroe County Public Defender [ Andrew Kyg, Esq. of counsel] for the Defendant
Sandra Doorley, Esq., District Attorney [Mikki Pelkey, Esq. of counsel] for the People
David A. Murante, J.
PROCEDURAL AND FACTUAL STATEMENT
The Defendant moves to dismiss claiming a violation of his statutory right to a speedy trial. [ Criminal Procedure Law § 30.30, hereafter CPL] The Defendant is charged by appearance ticket with operating a motor vehicle while impaired by drugs in violation of § 1192(4) of the Vehicle and Traffic Law [hereafter V and T], a misdemeanor, punishable by up to 364 days in jail. [V and T § 1193(1)(b)(i)] Under these circumstances the State must be ready for trial within ninety days of the Defendant's arraignment. [ CPL §§ 30.30(1)(b) and 30.30(7)(b) ]. Section 30.30(4) of the CPL provides that in any computation of the applicable time frame certain periods, defined therein, are excludable.
Of specific concern here is CPL § 30.30(4)(g)(i) which provides, in part, that "periods of delay occasioned by exceptional circumstances" must be excluded. This section states the delay caused by unavailability of evidence material to the People's case shall be excluded when the DA has exercised due diligence to produce the evidence and there is reason to believe that the evidence will become available in a reasonable time.
The Defendant was arraigned on July 13, 2020. On or about October 1, 2020, the People filed a Certificate of Compliance and Statement of Readiness for trial with the Court. [ CPL § 245.50 ] After inquiry by the Court, with an opportunity afforded to the Defendant to be heard, there appeared to be no basis to dispute the validity of the Statement of Readiness. [ CPL § 30.30(5) ] The People were therefore, at that point ready for trial, well within the 90 day requirement set forth in CPL § 30.30(1)(b).
After arraignment the matter was adjourned multiple times until November 16, 2021, when the Defendant requested the matter be scheduled for jury trial. The Court set December 2, 2021, for trial.
From the filing of the Certificate of Compliance and Statement of Readiness on October 1, 2021, until December 2, 2021, there was no indication that the People's readiness status had changed. In any event all the various adjournments, from the date of arraignment to December 2nd, were at the request of, or with the consent of the Defendant and/or because of covid restrictions placed on the court processes through various Executive Orders. By the terms of these Executive Orders and CPL § 30.30(4)(b) these periods are excludable and not to be considered in any calculation to determine whether the People were ready for trial within the 90-day requirement.
On December 2, 2021, the date scheduled for the trial, the People filed what was labeled a "Notice of Readiness for Trial". This Notice stated that the People were not ready to proceed to trial on December 2, 2021, because the arresting officer, a material witness, was unavailable. However, the Notice went on to state that the People would be ready for trial on or after March 1, 2022, citing People v. Kendzia. [64 N.Y.2d 331, 486 N.Y.S.2d 888, 476 N.E.2d 287 ]
At this point in time the Statement of Readiness filed by the DA on October 1, 2020, was invalid. Absent a statuary exclusion or the filing of a new, valid Statement of Readiness, any delay commencing December 2, 2021 forward would be chargeable to the People under the time restrictions of CPL § 30. 30.
The December 2 Notice did not provide any information concerning the reason for the Officer's unavailability or the basis for the prediction that he would be available "on or after March 1, 2022." On December 2, 2021, the court rescheduled the trial for January 20, 2022. In addition, the court scheduled an appearance of the parties for January 18, 2022, to delve into the basis for the officer's present unavailability and the People's prediction of future availability.
On December 29, 2021, the Court received an email from the DA stating that the People would not be ready for trial on January 20, 2022, because the Officer "was still recovering from major surgery that he had in late November of 2021."
At the January 18, 2022, appearance the DA provided the additional information that the "major surgery" was performed on the Officer's knee. At that time the Court requested medical documentation concerning the Officer's disability and the how it impacted his availability to appear in court as a witness.
On January 19, 2022, the Court received an email from the DA stating that the surgery was performed on the Officer's right thumb, rather than his knee. The DA now predicted that the Officer would become available to testify by the end of February. A Doctor's note, dated January 10, 2022, was attached to the email. The note provided that the surgery on the right thumb occurred on October 20, 2021, over one month prior to the original trial date of December 2, 2021, rather than late November as originally stated by the DA. The note further indicated that the Officer was "100% disabled with regards to right hand function" and "should remain out of work until further notice."
On the date of the injury the Officer was assigned to road patrol. The Court accepts, without more, that the injury to the Officer's thumb, until healed to a sufficient degree, would impair the Officer's ability to safely perform many of the duties confronting the Officer while on road patrol. These duties include writing tickets and reports; pursuing, arresting, and/or restraining suspects; operating a police vehicle and the equipment it contains, etc. However, the Doctor's January 10th note did not provide any insight into how the thumb injury, occurring some two and one half months prior, rendered the Officer physically and/or mentally unavailable to appear in court as a witness.
The matter was adjourned until March 22, 2022, for a report on the DA's readiness for trial and to set a trial date.
On February 28, 2022, by email, the DA announced that the Officer would return to work on March 21st, 2022. A trial was scheduled for May 5th, 2022. While the Officer apparently returned to work on March 21, 2022, it was not until March 31, 2022, that the People filed a formal Statement of Readiness which was not contested by the Defense.
On or about May 2, 2022, the Defense filed a motion seeking a dismissal of the charge on speedy trial grounds. In response the People opposed, arguing that the period between December 2, 2021 to March 31, 2022 was excludable as an exceptional circumstance under CPL § 30.30(4)(g). Under her affirmation the DA stated unequivocally that the sole basis for the Officer's unavailability was due to a "medical" problem, to wit: a "100% disability for right hand function".
Thereafter, several conferences were held. At these conferences the court requested that the DA provide information indicating how the injury to the Officer's thumb and/or right hand rendered him unavailable to give testimony. Inquiry by the Court under these circumstances is authorized, indeed mandated, by CPL § 30.30(4)(g). This section provides, in part, that any exclusion of time based on a claim of exceptional circumstances occurring "when a statement of unreadiness has followed a statement readiness", as is the case here, "must be evaluated by the court after inquiry on the record as to the reasons for the people's unreadiness and only be approved upon a showing of sufficient supporting facts".
Specifically, the Court requested from the DA a detailed statement defining the limitations, if any, effecting the Officer's ability to function, both mentally and physically, including the ability to think, speak, move about, review reports, visit friends, leave his home for social and/or family reasons or functions, etc. In addition, the Court requested a statement as to progression of the Officer's recovery during the period in question. In short, the Court sought a statement from the DA setting forth the basis justifying the Officer's unavailability to testify at any time between December 2, 2021 until March 31, 2022, some 118 days.
In response the People filed an affidavit, dated June 9, 2022, signed by the Officer, stating that commencing October 20, 2021, the date of his thumb surgery, he was unavailable to testify until March 21, 2022, because he "was receiving Worker's Compensation and was not permitted to work in any capacity."
Not satisfied with this response, the Court scheduled a hearing directing the DA to present testimony directly from the Officer and any other source on these issues. On the date of the hearing the People declined to call the Officer or present any other evidence. Instead, the DA conceded that the thumb injury, while limiting his ability to perform the duties of a road patrol officer, did not limit in any way the Officer's physical ability to appear and testify in court. At this point it became clear that the sole reason for the claimed unavailability during the entire period, commencing December 2, 2021, was because of the potential impact his appearance in court might have on his Workers Comp disability benefits.
In short, it is the People's position that the limitations placed on the witness by the Workers Comp Law and its rules and regulations constitute an exceptional circumstance justifying and excusing a 118 day delay of the trial.
DECISION
Based on the above circumstances it is clear that the People were not ready for trial during the entire 118 days, commencing on December 2, 2021 and ending on March 31, 2022, when the DA filed the uncontested, formal Statement of Readiness. I would note that at a court appearance on March 22, 2022, the DA advised that the Officer had returned to work on March 21, 2022. However, she did not announce readiness at that time. The Court declines to find her statement on March 22, sufficient to toll the running of the speedy trial clock. And even if found to be sufficient, the period of unreadiness would still exceed the 90 day limit. [ CPL 30.30(1)(b) ]
Further, the three emails from the DA, dated December 2, 2021, January 19, 2022, and February 28, 2022, predicting when the Officer would be available, did not constitute valid statements of readiness. A Statement of Readiness is valid only if the People are in fact ready at the time the statement is made. "The statute contemplates present readiness, not a prediction of readiness or expectation of future readiness." [ People v. Kendzia , 64 N.Y.2d 331,334, 486 N.Y.S.2d 888, 476 N.E.2d 287 ; citing People v. Hamilton , 46 N.Y.2d 932, 415 N.Y.S.2d 208, 388 N.E.2d 345 ]
The central question presented is whether, under the circumstances present here, the threat of the loss of Workers Comp benefits is an exceptional circumstance, justifying the 118 day delay. [ People v. Harrison, 171 A.D.3d 1481, 99 N.Y.S.3d 158 ] I find that it is not.
There is no precise definition of what constitutes an exceptional circumstance under CPL § 30.30(4)(g). In enacting this provision, the Legislature recognized that it could not anticipate every circumstance which might warrant tolling of the speedy trial time. Whether the delay is excusable because of exceptional circumstances is thus determined by the facts and circumstances of the case at hand. [ People v. Smietana, 98 N.Y.2d 336,341, 746 N.Y.S.2d 678, 774 N.E.2d 743 ] The People bear the burden of proof on this question of fact. [ People v. Zirpola, 57 N.Y.2d 706, 708, 708, 454 N.Y.S.2d 702, 440 N.E.2d 787 ; People v. Blacks , 153 A.D.3d 720,723, 61 N.Y.S.3d 66 ; People v. Person , 184 A.D.3d 447, 448, 126 N.Y.S.3d 14, lv den 35 N Y3d 1069, 129 N.Y.S.3d 387, 152 N.E.3d 1189 ]
Some guidance on what constitutes an exceptional circumstance can be gleaned by a review of some of the case law. Exceptional circumstances were found justifying the tolling of the speedy time provisions in the following cases: People v. Womack , [229 A.D.2d 304, 645 N.Y.S.2d 16, lv ap den 90 N.Y.2d 974, 665 N.Y.S.2d 952, 688 N.E.2d 1034 —delay of 43 days for necessary recovery associated with the birth of a child]; People v. Castello , [74 Misc. 3d 451, 159 N.Y.S.3d 650 —delay of 5 days excludable where witness suddenly and unexpectantly gave birth]; People v. Gordon , [47 A.D.2d 775, 365 N.Y.S.2d 269 —a 10 day delay due to witness being hospitalized and unable to travel]; People v. Person , [184 A.D.3d 447, 126 N.Y.S.3d 14 —delay excludable where victim was medically unavailable being seriously ill with cancer ]; People v. McLeod, [281 A.D.2d 325, 722 N.Y.S.2d 507 --delay excused where arm of witness encased in a cast from the wrist to the shoulder]; People v. Mack , [300 A.D.2d 254, 752 N.Y.S.2d 313 —time excluded where witness was paralyzed and traumatized as a result being the victim of an assault]; People v. Martinez , [268 A.D.2d 354 —13, 701 N.Y.S.2d 425 day delay excused where the witness was in the hospitalized and immobilized due to back and neck injuries]; People v. Sinanaj [291 A.D.2d 513, 739 N.Y.S.2d 392 —delay excused where victim was unavailable due to trauma suffered as a result of a shotgun wound to her face inflicted by her brother]; People v. Thompson, [118 A.D.3d 922 —146, 988 N.Y.S.2d 209 day delay excused where the witness was deployed in Iraq]; and; People v. Goodman , [41 N.Y.2d 888, 393 N.Y.S.2d 985, 362 N.E.2d 615 --a 9 week delay excludable where the witness was in the hospital as a result of burns inflicted when her husband poured a bowl of lye on her head and shoulders. In a dissenting opinion, Judge Fuchsberg wrote that he would charge part of the delay to the People because witness had on occasion been given a furlough from the hospital to visit relatives and was finally released for part of the period to her home under doctors’ care. Under these circumstances and during those periods, he concluded, she was physically able to testify. Fuchsberg further opined that the majority's ruling, "would vitiate’ the statute's purpose]; People v. Blacks , [153 A.D.3d 720, 61 N.Y.S.3d 66 —delay excused where witnesses were not available because they were suffering from severe physical and emotional trauma.]
Common to all these cases and the finding of exceptional circumstances sufficient to toll the speedy trial time provisions is fact that the witness was physically unable to appear, through no fault of the witness. Serious illness, serious injury, mental trauma, and/or being physically outside of the court's jurisdiction and unable to travel to court are the common threads throughout.
Nowhere, were exceptional circumstances found where the witness was readily available within the court's jurisdiction, unencumbered by any physical or mental impairment, and, thus, fully able to testify.
Any consideration of this issue should keep in mind that the Fourth Department has described the statutory right to a speedy trial as fundamental, requiring, in absence of a good excuse, a dismissal. [ People v. Williams , 67 A.D.2d 1094, 415 N.Y.S.2d 155 ] Some guidance of what does not constitute a "good excuse" can be found in People v. Harrison , [171 A.D.3d 1481,1483, 99 N.Y.S.3d 158 ]. There the Fourth Department held that a delay to accommodate the vacation plans of a witness is not excludable.
The requirement that there be a valid excuse justifying a delay based on a claim of witness unavailability was codified in 2019, by an amendment to CPL § 30.30(4)(g). The amendment requires special attention by the Court before granting an exclusion where, as is the case here, a statement of unreadiness has followed a statement of readiness made by the People. In this circumstance, the Court, must evaluate the People's request "after inquiry on the record as to the reasons for the [P]eople's unreadiness and shall only be approved upon a showing of sufficient supporting facts." [The Court notes § 30.30(3)(b) mirrors the same language as § 30.30(4)(g)(i) without the additional, specific requirement that the Court decide that the delay is justified. I decline to apply the lesser standard in deciding the issues presented here. I would also note that Fuchsberg's dissent in ( People v. Goodman , 41 N.Y.2d 888, at 890, 393 N.Y.S.2d 985, 362 N.E.2d 615 ) probably would have been the majority view if this amendment was then the law.]
The terms of this provision clearly require enhanced scrutiny by the court of the basis of any claim by the People that the circumstances support exclusion. Based on the record before me the People have failed to meet their burden.
Rather than the thumb injury, the exceptional circumstance proffered by the DA, was the fear that a court appearance by the Officer might jeopardize his eligibility to receive Workers Comp benefits. Loss of pay by a civilian witness is a frequent consequence of having to testify in court. A financial hardship does not justify the refusal of a civilian witness to testify, nor does it excuse the failure of the DA to compel a reluctant witness to appear. A different rule should not apply because the witness happens to be a police officer.
It is incomprehensible to the Court that the continued receipt of Workers Comp benefits justifies the failure to make the Officer available for trial. It makes no sense that the Criminal Justice System and the fundamental right of an accused and the community to a speedy disposition can be held hostage, for a period of 118 days, to such a nonsensical law or regulation.
Further, the Prosecution did not present any evidence to support this claim. Nor did it rebut in any way the Defense attorney's arguments, based on his understanding of and experience with the Workers Compensation Law, that by testifying the Officer would not be disqualified totally from receiving benefits. Rather, the Defense claimed he would be, at worst, denied one day of benefits, but, on the other hand, be eligible for one day of pay.
The People have failed to show sufficient reasons and supporting facts to justify excluding any part of the 118 day delay. The Defendant, being denied his statutory right to a speedy trial, the matter is dismissed. [ People v. Harrison , 171 A.D.3d 1481, 99 N.Y.S.3d 158, 4th Dept. 2019 ; CPL§§ 30.30(1)(b) and 30.30(4)(g)]
So Ordered.