Opinion
No. CR-XXXXX-XXBX
04-23-2024
The People of the State of New York v. A.V., Defendant.
For the People: Taber Lucchese, Assistant District Attorney Office of the Bronx District Attorney For the Defendant: Paul S. London, Esq.
Unpublished Opinion
For the People: Taber Lucchese, Assistant District Attorney Office of the Bronx District Attorney
For the Defendant: Paul S. London, Esq.
Carmen A. Pacheco, J.
The People move under seal for an order (i) granting a four-month continuance nunc pro tunc from December 19, 2023 pursuant to CPL § 30.30(4)(g) and (ii) for such other and further relief as this Court deems just and proper.
For the reasons set forth herein, the People's motion is granted in its entirety.
Procedural Facts
Defendant A.V. has a history of stalking and harassing V.B. ("complaining witness"). The defendant's criminal record shows, inter alia, a prior 2016 conviction for stalking complaining witness and for criminal contempt as a result of violating an order of protection forbidding defendant from having contact with the complaining witness.
However seven years after his conviction on May 27, 2023, defendant was rearrested for stalking and harassing the 2016 complaining witness. As a result, defendant was charged with Penal Law ("PL") §§ 120.50(4)(stalking in the third degree); 120.50(2)(stalking in the third degree); 120.45(1)(stalking in the fourth degree); 120.45(2)(stalking in the fourth degree); 240.25(harassment in the first degree); and 240.26(harassment in the second degree) and was issued a full no contact order of protection in favor of complaining witness. While the order of protection was in full force and effect, defendant was rearrested again for sending the complaining witness multiple emails, in violation of the order, including one stating "YOU WILL PAY". As a result of defendant's conduct, on September 19, 2023, he was arraigned and charged with PL § 215.50(3)(criminal contempt in the second degree) along with identical penal law charges relating to the May 2023 stalking matter. The matter was adjourned to September 22, 2023.
On September 22, 2023, the People filed and served a notice indicating their intent to elevate the misdemeanor criminal contempt matter to a felony. Consequently, the matter was adjourned to October 25, 2023 for the People to convert the misdemeanor complaint to an information and for certificate of compliance. However, at the request of defendant's attorney, the matter was advanced to October 4, 2023 for defendant to be assigned an 18-B attorney on the felony panel. After the assignment of new counsel, the matter was adjourned to October 25, 2023 for a status update.
In between court appearances, by electronic mail delivery dated October 12, 2023, defendant agreed to waive CPL § 30.30 time from October 11, 2023 until the next court date for a possible disposition. Defendant agreed to continue waiving CPL § 30.30 time until either his client is screened or declines to do so.
On October 25, 2023, there was no grand jury action. Consequently, the matter was adjourned to December 19, 2023 for grand jury action. By December 19, 2023, the matter remained unindicted and, thus, defendant no longer agreed to waive speedy trial time. In response, the People requested a four-month continuance to present the matter to the grand jury because the complaining witness was pregnant and due to her condition, she was unable to appear before a grand jury. For the court to determine whether a continuance should be granted, the matter was adjourned to December 21, 2023 for oral argument. When December 21st arrived, oral argument was heard and the court ordered the parties to submit written briefs. The matter was adjourned to March 13, 2024 for decision.
On January 26, 2024, the People filed and served a protective order pursuant to CPL § 245.70 limiting the possession and use of the complainant's medical records. Simultaneously the People moved, pursuant to CPL § 30.30(4)(g), for a four-month continuance nunc pro tunc from December 19, 2023. Specifically, the People noted that the complainant would be on maternity leave until June 1, 2024. On January 30, 2024, defendant consented to the People's request for a protective order. Consequently, the matter was advanced to February 15, 2024 for the signing of the protective order.
On February 15, 2024, the court and defendant signed the protective order on the record. Additionally, the court informed defendant that his attorney would not be permitted to disclose to him certain documents and information. Subsequently, the matter was adjourned to March 13, 2024 for decision on the People's motion for a continuance.
On March 11, 2024, defendant belatedly opposed the People's motion. Defendant conceded that complainant's pregnancy and birth delivery was excludable time pursuant to CPL § 30.30(4)(g). However, defendant noted that based on complaining witness's medical records she was able to return to work on February 12, 2024. Consequently, defendant requested that the continuance be limited until February 12, 2024. Thereafter, on March 13, 2024, the court granted the People an opportunity to file a reply and set a new motion schedule.
Legal Analysis
Continuance Resulting from Witness Unavailability
For an exclusion of time tolling the trial readiness obligation, the People's request should squarely rest on the circumstances set forth in CPL § 30.30(4)(g). However, CPL § 30.30(4)(g) exceptional circumstance is not defined within the Criminal Procedure Law. In fact, there is no precise meaning because the Legislature "could not anticipate every situation that might warrant tolling of the speedy trial time period." People v. Smietana, 98 N.Y.2d 336, 341 (2002). Yet, an exclusion for exceptional circumstances under CPL § 30.30(4)(g) is "'not limited to' instances where a continuance has been granted." People v. Zirpola, 57 N.Y.2d 706 (1982) (citation omitted). Instead, the court must take into consideration the statute's intent to prevent prosecutorial delay when determining whether time should not be charged to the prosecution. See People v. Price, 14 N.Y.3d 61 (2010).
Here, since defendant concedes that complaining witness's pregnancy and birth delivery constitute an exceptional circumstance the court need not address this issue. As to excludable time, generally the period of time in which a witness is unavailable as a result of parental leave is excludable from the speedy trial calculation. People v. Silverstri, 48 Misc.3d 810 (Crim. Ct. NY Cnty. 2015) (excluding four-month period during arresting officer's maternity leave from the speedy trial time as an exceptional circumstance); see, People v. Lee, 15 Misc.3d 1137(A) (Crim. Ct. New York Cnty. 2007) (court recognized time taken by the Police Officer to be with spouse who had recently given birth to twins who were in intensive care was within the purviw of exceptional circumstances under CPL §30.30 (4)(g)). In addition to the length of the witness's parental leave, the court should consider other factors such as "infant care and the need to find appropriate childcare" when determining the length of the continuance. See People v. Castello, 74 Misc.3d 451, 455 (Crim. Ct. Kings Cnty. 2022) (paternity leave constituted an exceptional circumstance). Consequently, the court finds that a continuance due to the complaining witness's pregnancy and child delivery reasonable. See People v. Womack, 229 A.D.2d 304 (1st Dept. 1996) (43 days of the arresting officer's unavailability due to maternity leave were excludable delay pursuant to CPL 30.30 (4) (g)).
Moreover, the court must take into consideration whether complainant's testimony is crucial for the People meet their burden before the grand jury. See People v. Blacks, 153 A.D.3d 720 (2d Dept. 2017) (defendant's parole officer and other parole officer's testimony crucial since they conducted the search of defendant's residence); cf. People v. Alvarez, 194 A.D.3d 618 (2021) (complainant's testimony was not material since she lacked any memory of the accident).
Here, complaining witness has been the subject of defendant's harassment since 2016. Additionally, she was the recipient of the emails sent in violation of the full order of protection. See People v. S.F., 63 Misc.3d 198 (Crim. Ct. NY Cnty. 2018) (arresting officer possessed material evidence regarding observations of defendant's physical condition indicating intoxication). Without complaining witness's testimony, the People would be unable to establish crucial testimony for the grand jury.
Consequently, the court finds that the People established that a continuance is necessary since complainant's testimony is essential to meet their burden at the grand jury.
Pre-Trial Motion Time is Excludable
The court also finds that the pre-trial motion time period from December 19, 2024 to the date of this decision is excludable from the CPL § 30.30 time. A reasonable period of delay resulting from pre-trial motions and the period which the motion is under consideration by the court is excludable from the CPL § 30.30 calculation. CPL § 30.30(4)(a). "The plain language of the aforementioned statute does not limit its applicability to motions made by the defense." People v. Sivano, 174 Misc.2d 427, 429 (App. T. 2nd Dept. 1997). Additionally, the exclusion includes "delays attributable to responding to and deciding motions actually made". People v. Collins, 82 N.Y.2d 177 (1993).
Here, the People commenced the pre-trial motion period when they orally moved for a continuance on December 19, 2023. On the oral argument date of December 21, 2023, the court requested that the parties submit written briefs and set a motion schedule which continued to stop the CPL § 30.30 time. People v. Brown, 99 N.Y.2d 488 (2003) (time was excludable even though no motion was filed because the court set a motion schedule and a decision date). The pre-trial exclusion includes all the time until a decision is rendered. People v. Erby, 68 Misc.3d 625 (Sup. Ct. Bronx Cnty. 2020) (speedy trial time was excludable until February 3, 2020 when the People received a final decision on their motion). Consequently, the parties have been engaged in motion practice since December 19, 2023 and all the time until the date of this decision is excludable.
Conclusion
The Court holds that the People have met their burden to show that their testifying witness is unavailable to testify due to the future delivery of her child. See People v. Correa, 168 Misc.2d 309 (Richmond Cnty. Ct. 1996). The court also finds that the People have demonstrated that the complaining witness's testimony is crucial.
Accordingly, the Court therefore grants the People's request for an excludable continuance nunc pro tunc from December 19, 2023 pursuant to CPL § 30.30(4)(g) until May 1, 2024.
This constitutes the decision of the court.