Opinion
253-2010.
Decided July 7, 2011.
Ricciani Jose, LLP, Monticello, NY.
By: Jacqueline Ricciani, Esq., Attorney for Defendant, Hon. James R. Farrell, Sullivan County District Attorney, Lawrence H. Cooke Sullivan County Courthouse, Monticello, NY, Attorney for the People.
The defendant moves for an Order granting an adjournment of the trial in the above entitled matter due to the temporary unavailability of a key defense alibi witness who resides in California. The motion was heard on the record on July 5, 2011.
The People, orally on the record, did not opposed the defendant's motion for an adjournment.
On April 1, 2011, this Court allowed the defense to serve a late Notice of Alibi upon the People. Thereafter, a trial date was scheduled with the Court Clerk for June 6, 2011.
The defendant was arrested and arraigned on a felony complaint in the Village of Liberty Justice Court on June 9, 2010; he was subsequently indicted on December 15, 2010 and charged with criminal mischief in the second degree in violation of section 145.10 of the New York Penal Law. At arraignment, on December 20, 2010, the People announced their readiness for trial on the record and again stated their readiness for trial in writing on December 23, 2010. The defendant was given time for omnibus motion practice and submitted the omnibus motion on April 4, 2011.
The defendant Corey Nicholas is a second felony offender having been convicted of forgery in the second degree stemming from an arrest on July 6, 1996 and forgery in the second degree stemming from an arrest on February 11, 1997. He was sentenced for both convictions on May 2, 1997 and received a sentence of two and one-third to seven years in state prison with each sentence to be run concurrently to each other. He was released from state prison on or about February 4, 2003.
No alibi notice was filed until April 1, 2011 when the defendant stated the need to call a witness who was later identified as his girlfriend who is pregnant with his child and now living in California. The defendant was granted permission by this Court to move to California at arraignment on December 20, 2010 to obtain employment as a condition of bail.
During a court appearance on May 26, 2011, defense counsel informed the Court that her alibi witness would be unable to testify in person due to the witness' pregnancy. At that time, the Court suggested the use of a live two-way video conference to allow the alibi witness to testify. The defendant objected to video conferencing the testimony and then filed a motion for an adjournment of the trial.
The witness lives in California and cannot travel because of potential childbirth complications; the child is due sometime in July.
An affirmation in support of the defendant's motion was made by defense counsel, Jacqueline Ricciani, dated June 23, 2011.
On July 5, 2011, a hearing was held for the defendant's motion to adjourn trial until mid-September, pursuant to the concerns of the witness' physician, and the interest of justice.
This is an approximate date of six-weeks after the witness' child is to be born and when the witness is able to travel again.
In addition to defense counsel's own affirmation that the alibi witness would be unable to travel to New York for trial, the witness' physician, Dr. Carol Tran Cao, submitted a letter indicating the same, dated June 18, 2011. Therein it was alleged that because the witness is at risk to go into labor at any time, "the stress of testifying will create undue stress on her and the unborn fetus."
As held in People v. Wrotten , 14 NY3d 33, 38 (2009), the Courts have "preexisting authority" to decide whether an unavailable witness may testify outside of the courtroom, and that "such witness' testimony via two-way televised transmission is presumably left to the trial court's discretion." In Wrotten , it was also noted that the "public policy of justly resolving criminal cases while at the same time protecting the well-being of a witness can require live two-way video testimony in the rare case where a key witness cannot physically travel to court in New York," especially where a "defendant's confrontation rights [are] minimally impaired." Id.
Moreover, federal courts have permitted live video testimony in a variety of circumstances, such as when public policy is implicated by a key witness too ill to physically appear in court. See e.g. , Horn v. Quarterman , 508 F3d 306, 317-18 (5th Cir. 2007); United States v. Benson , 79 Fed. Appx. 813 (6th Cir. 2003); United States v. Gigante , 166 F3d 75, 79 (2nd Cir. 1999).
The testimony of this alibi witness is unique in that she is the only witness who will testify to the defendant's location during the time of the alleged criminal activity. Since this testimony is not cumulative, and is critical to putting on a proper defense, the testimony is required to satisfy due process.
While in rare cases, the Court may exercise its power to compel testimony through the use of two-way video transmission, the circumstances here do not require such at this time.
Since extensive court and technical support will be required to facilitate two-way video testimony in the instant case, it is fiscally impractical to compel such testimony in light of the fact that the witness is not permanently or indefinitely unable to travel. Coupled with the fact that the unavailable witness should be medically cleared for travel in September 2011, the interests of justice move this Court into granting the defendant's motion for an adjournment, on the consent of the People.
Based on the above, it is:
ORDERED that the defendant's motion granting an adjournment of the trial is granted. Jury selection is scheduled for Friday September 2, 2011 at 9:30 A.M.
ORDERED that no further adjournments will be granted and the defendant and the People are put on notice that if this alibi witness is not physically available to testify in the Courtroom, this Court will permit the defense to arrange for the live video taping of the witness in California.
This shall constitute the Decision and Order of this Court.