Summary
In Womack, the court found that the People met their burden to establish that the arresting officer was a material witness, that she would be available soon, and that they had diligently attempted to produce her at trial (id. at 304).
Summary of this case from People v. SegreeOpinion
July 2, 1996
Appeal from the Supreme Court, New York County (Carol Berkman, J.).
The 43 days of the arresting officer's unavailability due to maternity leave were excludable delay pursuant to CPL 30.30 (4) (g). Consequently, the People answered ready within the statutory period and the motion to dismiss should have been denied. The People successfully met their burden of establishing that the officer was an unavailable material witness, whom they reasonably believed would become available soon, and whom they were diligent in attempting to produce at trial ( see, People v. Zirpola, 57 N.Y.2d 706). They demonstrated that her testimony was critical in establishing the chain of custody of crucial physical evidence; that she was actually unavailable, based upon the date she gave birth and the necessary period of recovery immediately thereafter; that they were diligent in answering ready prior to the witness' unavailability; and that, during the period of unavailability, they diligently kept themselves and the court apprised of her expected return date. Under the circumstances, this constituted due diligence ( see, People v. Celestino, 201 A.D.2d 91, 95; People v. Pomales, 159 A.D.2d 451, lv denied 76 N.Y.2d 847; People v. Hancock, 173 A.D.2d 377, lv denied 78 N.Y.2d 1011), and readily distinguishes this situation from those in cases cited by defendant.
We have reviewed defendant's remaining contentions and find them to be without merit.
Concur — Murphy, P.J., Wallach, Rubin, Williams and Mazzarelli, JJ.