The People, Appellant,v.Dru Allard, Respondent.BriefN.Y.September 6, 2016COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- DRU ALLARD, Defendant-Respondent. • LEONARD JOBLOVE THOMAS M. ROSS APPELLANT'S BRIEF Assistant District Attorneys of Counsel Telephone: (718) 250-2534 Facsimile: (718) 722-4223 February 10, 2016 To be argued by: THOMAS M. ROSS (15 Minutes) Kings County Indictment Numbers 9083/2006 8542/2007 APL-2015-00241 KENNETH P. THOMPSON DISTRICT ATTORNEY KINGS COUNTY RENAISSANCE PLAZA 350 JAY STREET BROOKLYN, NEW YORK 11201-2908 (718) 250-2000 TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................ i QUESTION PRESENTED ............................................ iii PRELIMINARY STATEMENT ........................................... 1 STATEMENT OF FACTS .............................................. 3 Introduction ............................................... 3 The Resubmission of the Case to the Grand Jury ............. 3 Defendant's C.P.L. § 30.30 Motion .......................... 4 The Trial .................................................. 6 The People's Case ..................................... 6 Defendant's Case ...................................... 8 The Verdict and the Sentence ............................... 9 The Appellate Proceedings Before Remittal ................. 10 The Hearing After Remittal ................................ 12 The People's Case .................................... 13 Defendant's Case ..................................... 15 The Hearing Court's Decision ......................... 15 The Appellate Proceedings After Remittal .................. 16 ARGUMENT - THE APPELLATE DIVISION'S HOLDING THAT DEFENDANT PRESERVED HIS C.P.L. § 30.30 CLAIM FOR APPELLATE REVIEW IS ERRONEOUS, BECAUSE, PRIOR TO THE DETERMINATION OF THE C.P.L. § 30.30 MOTION, DEFENDANT DID NOT CHALLENGE THE PEOPLE'S ARGUMENT THAT THE PERIOD AT ISSUE WAS EXCLUDABLE PURSUANT TO C.P.L. § 30.30(4) (g), AND BECAUSE THE TRIAL COURT DID NOT EXPRESSLY DECIDE THE QUESTION THAT DEFENDANT RAISED ON APPEAL REGARDING THE EXCLUDABILITY OF THAT PERIOD .............................. 21 CONCLUSION - THE ORDER OF THE APPELLATE DIVISION SHOULD BE REVERSED, THE JUDGMENT OF CONVICTION SHOULD BE REINSTATED, AND THE CASE SHOULD BE REMITTED TO THE APPELLATE DIVISION FOR THAT COURT TO DETERMINE WHETHER TO REACH DEFENDANT'S CLAIM IN THE INTEREST OF JUSTICE .......................... 37 TABLE OF AUTHORITIES Pages CASES People v. Allard, 113 A.D.3d 624 (2d Dep't 2014) ...... 12, 25, 29 People v. Allard, 128 A.D.3d 1081 (2d Dep't 2015) ...... 1, 20, 29 People v. Autry, 75 N.Y.2d 836 (1990) ..................... 22, 36 People v. Beasley, 16 N.Y.3d 289 (2011) ........ 16, 22, 24-25, 28 People v. Cambridge, 230 A.D.2d 649 (1st Dep't 1996) .......... 35 People v. Carter, 285 A.D.2d 384 (1st Dep't 2001) ............. 27 People v. Cona, 49 N.Y.2d 26 (1979) ................... 22, 30, 36 People v. Creech, 60 N.Y.2d 895 (1983) .................... 22, 36 People v. Davidson, 98 N.Y.2d 738 (2002) ...................... 32 People v. Delacruz, 241 A.D.2d 328 (1st Dep't 1997) ........... 35 ~~~~~~F~a~g~an~, 260 A.D.2d 219 (1st Dep't 1999) .............. 35 People v. ~~~~~G~e~r~s~t~e=l, 134 A.D.2d 281 (2d Dep't 1987) ............. 35 People v. ~~==~~~G~o~o~de~, 87 N.Y.2d 1045 (1996) ........ 11, 16, 22, 25, 28 People v. ~~~~~~H~am~p~t~on~, 21 N.Y.3d 277 (2013) ................ 25-26, 28 People v. ~~~~~L~a~r~a~b~y, 92 N.Y.2d 932 (1998) ........................ 32 People v. ~~~~~=L=a~w~r~e~n~c~e, 64 N.Y.2d 200 (1984) ...................... 35 People v. ~~==~~=L~u~p~e~r~on~, 85 N.Y.2d 71 (1995) ........ 11, 16, 22, 25, 28 People v. People v. Meierdiercks, 68 N.Y.2d 613 (1986) .................. 35 People v. Michael, 48 N.Y.2d 1 (1979) ......................... 33 People v. Padro, 75 N.Y.2d 820 (1990) ......................... 32 People v. Prado, 4 N.Y.3d 725 (2004) ................... 25-26, 28 TABLE OF AUTHORITIES (cont'd) Pages People v. Pressley, 94 N.Y.2d 935 (2000) ...................... 32 People v. Samuels, 224 A.D.2d 261 (1st Dep't 1996) ............ 27 People v. Williams, 293 A.D.2d 557 (2d Dep't 2002) ............ 27 CONSTITUTIONAL PROVISIONS N.Y. Canst. art. VI, § 3 ....................................... 2 STATUTES C.P.L. § 30.30 ............................................ passim C.P.L. § 330.30 ............................................ 32-33 C. P.L. § 470.05 .................................... 26, 28, 30-31 C.P.L. § 470.15; ....................................... 22, 29-31 C.P.L. § 470.35 ................................................ 2 C.P.L. § 470.40 ....•...............•.......................... 22 Judiciary Law § 21 ............................................ 26 P.L. § 120.14 .......................................•. 1, 3, 9-10 P.L. § 120.15 .................................................. 3 P.L. § 210.45 ................................................. 12 P.L. § 240.30 .............................................. 3, 10 P.L. § 265.01 ................................................ 3-4 P.L. § 485.05 ......................................... 1, 3, 9-10 ii QUESTION PRESENTED Whether the Appellate Division's holding that defendant's C. P. L. § 30.30 claim was preserved for appellate review was incorrect, because, prior to the determination of the C.P.L. § 30.30 motion, defendant failed to challenge the People's argument that the time period that was determinative of the C.P.L. § 30.30 motion was excludable pursuant to the exceptional circumstances provision of C.P.L. § 30.30(4) (g), and because the trial court did not expressly decide the question that defendant raised on appeal regarding the excludability of that period. iii COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- DRU ALLARD, Defendant-Respondent. APPELLANT'S BRIEF Kings County Indictment Numbers 9083/2006 8542/2007 APL-2015-00241 PRELIMINARY STATEMENT By order of the Honorable Eugene M. Fahey, dated September 3, 2015, granting leave to appeal to this Court, the People of the State of New York appeal from a May 27, 2015 order of the Appellate Division, Second Department. See People v. Allard, 128 A.D.3d 1081 (2d Dep't), leave granted, 26 N.Y.3d 965 (2015). That order reversed a judgment of the Supreme Court, Kings County, rendered June 9, 2010, convicting defendant Dru Allard, after a jury trial, of Menacing in the Second Degree as a Hate Crime (P.L. §§ 120.14[1]/485.05[1]) and sentencing him to a five-year term of probation (Walsh, J., on C.P.L. § 30.30 motion; Parker, J., at pretrial suppression hearing; Sullivan, J., at trial and sentence; Chun, J., on C.P.L. § 30.30 hearing after remittal). The Appellate Division's order also dismissed the indictment. The dismissal of the indictment terminated defendant's sentence of probation. There were no co-defendants. This Court has jurisdiction, pursuant to the New York Constitution, Article VI, section 3, and pursuant to Criminal Procedure Law § 470.35(2) (a), to entertain this appeal and to review the question raised. 2 STATEMENT OF FACTS Introduction On September 10, 2006, at approximately 4:30 p.m., in front of a mosque on Atlantic Avenue between Third and Fourth Avenues in Brooklyn, defendant Dru Allard uttered ethnic slurs at people who appeared to be Muslims. When Hizam Wahib objected to defendant's behavior, defendant twice held a knife at Wahib and uttered ethnic slurs at him. For these acts, defendant was charged, under Kings County Indictment Number 9083/2006, with two counts each of Menacing in the Second Degree as a Hate Crime (P. L. §§ 120.14[l]/485.05[1][b]), Menacing in the Second Degree (P.L. § 120.14[1]), Aggravated Harassment in the Second Degree (P.L. § 240.30[3]), Menacing in the Third Degree as a Hate Crime (P.L. §§ 120.15/485.05[1][b]), and Menacing in the Third Degree (P.L. § 120.15), and one count of Possession of a Weapon in the Fourth Degree (P.L. § 265.01[2]). The Resubmission of the Case to the Grand Jury By decision and order dated May 31, 2007, the Supreme Court, Kings County, dismissed all of the counts in Indictment Number 9083/2006, except for count four, the count charging defendant with the misdemeanor of Criminal Possession of a Weapon in the 3 Fourth Degree (A.15, 27) . 1 The Supreme Court granted the People permission to resubmit the case to the grand jury (A.15, 27). The People resubmitted the case to the grand jury. On September 5, 2007, the People served and filed a statement of readiness for trial with a new indictment, Indictment Number 8542/2007 (A.15, 29). The new indictment charged defendant with all of the offenses that had been contained in the original indictment, Indictment Number 9083/2006, except for the offense of Criminal Possession of a Weapon in the Fourth Degree. Defendant's C.P.L. § 30.30 Motion By motion dated November 11, 2008, defendant moved to dismiss the indictment on the ground that his statutory right to a speedy trial under Criminal Procedure Law ("C. P. L. ") § 30.30 had been violated (A.13-22). Defendant contended that the People had exceeded their six-month time limit because according to defendant-- 223 days were chargeable to the People (A.l4-18). Among the periods that defendant claimed were chargeable to the People was the 97-day period from May 31, 2007, when the court dismissed all but one of the counts in the original indictment, Indictment Number 9083/2006, to September 5, 2007, when the People 1 Numbers in parentheses refer to pages of the appendix. Names in parentheses refer to the witnesses whose testimony is summarized. 4 served and filed Indictment Number 8542/2007 and a statement of readiness for trial (A.l5). Defendant argued that Indictment Number 9083/2006 was not "valid" during this 97-day period because it charged only a misdemeanor and that, as a result, all of the time that elapsed during this period was chargeable to the People (A.l5). By answer dated December 10, 2008, the People argued that defendant's motion should be denied because only 140 days were chargeable to the People (A. 24) . With respect to the 97-day period from May 31 to September 5, 2007, the People argued that 32 days of that period, from July 27 to August 28, 2007, were excludable under the exceptional circumstances provision of C.P.L. § 30.30(4) (g), because "the complaining witness was on vacation in Egypt and beyond the control of the People" (A.27-29). The People explained that "[s] ince the witness's testimony was material in the case, the People could not re[-]present this case to the Grand Jury until his return" (A.28-29). Defendant did not file any reply papers or otherwise dispute the arguments made in the People's answer. In a written decision and order dated December 19, 2008, the Supreme Court, Kings County, denied defendant's C.P.L. § 30.30 motion (A.43). The court calculated that only 168 days were chargeable to the People (A.43). The court held that the 32- 5 day period from July 27 to August 28, 2007 was excludable (A.43). The court said, "The people contend and the defense does not dispute that the complaining witness was in Egypt between July 27 and August 28 and beyond the control of the peoplen (A.43). The case proceeded to trial. The Trial The People's Case On September 10, 2006, at about 4:30p.m., HIZAM WAHIB parked his car in front of the Al Faarouq Mosque on Atlantic Avenue between Third and Fourth Avenues in Brooklyn (Wahib: A.49, 53-60, 84, 94, 96-97). As he exited his car, Wahib saw and heard defendant calling an elderly man, who was dressed in "Islamic garb, n a "sand n*****" and other ethnic slurs. The elderly man, who was selling bottles of water to the passing vehicles, ignored defendant (Wahib: A. 52-53, 57-59, 95, 138, 140, 172). Defendant then yelled ethnic slurs at an elderly couple, who were also dressed in Islamic garb and appeared to be of Arabic or south Asian ethnicity. The elderly couple moved away from defendant (Wahib: A.60-62, 138-40). Wahib told defendant that this was not "his place" and that he should leave (Wahib: A.62, 108-09, 123, 145, 190). Defendant called Wahib a "sand n*****" and other slurs (Wahib: A. 62, 140, 170). Defendant then reached toward his back, pulled out a knife, 6 and held the blade out as he stepped to within two feet of Wahib (Wahib: A. 63-64, 117, 129). Backing away from defendant, Wahib pulled out his cell phone, called 911, and reported that a white man in a cowboy hat and black tee-shirt was walking around with a knife and was uttering racial slurs (Wahib: A.63-64, 117). Defendant put the knife away and crossed Atlantic Avenue toward Fourth Avenue (Wahib: A. 64-65) . To ensure that defendant would be apprehended, Wahib followed him (Wahib: A.65, 86). Apparently noticing that he was being followed, defendant pulled out the knife again, approached Wahib to within a few feet, and screamed at him, calling him a "sand n*****" and other slurs again. Defendant said that the police would arrest Wahib and not him (Wahib: A. 66-67, 73-74, 96-97, 115, 142, 157, 160-62, 171). Wahib increased the distance between him and defendant, called 911 again, and continued to follow defendant (Wahib: A.66-67, 88, 142- 43). A recording of the 911 calls was introduced into evidence (A. 63-64) . At 4:34 p.m., Police Sergeant PIERRE HYPPOLITE heard a radio dispatch of a white male in a cowboy hat with a knife on Fourth Avenue and Atlantic Avenue (Hyppolite: A.209-10, 230-32). Minutes later, Sergeant Hyppolite saw defendant, who was the only person around wearing a cowboy hat (Hyppolite: A.211, 236, 395). Sergeant Hyppolite stopped defendant, patted him down, and 7 recovered a knife from his back pocket (Hyppolite: A.212-214, 226, 255) . Wahib came from one block away and identified defendant (Wahib: A.89; Hyppolite: A.215, 217, 238, 295). Police Officer RIKKI SY also responded to Saint Felix Street and Lafayette Avenue, where defendant was being held, and arrested him (Hyppolite: A.238; Sy: A.311-13, 316, 321) . 2 Defendant's Case Defendant DRU ALLARD was 46 years old with a Bachelor of Arts degree in theatre production and a law degree. Although defendant had passed the bar examination, he was not a practicing attorney (Allard: A.398, 414, 455-56). Defendant claimed that, at the time of the crime, a man selling water in the street, two large dark-skinned men, and Wahib all told defendant that he did not belong on the block, which had a mosque, and demanded that he leave (Allard: A.416-18, 424-26, 456, 460-61, 466). Defendant admitted that he had been drinking and that he profanely objected to their demand, but denied uttering any racial, religious, or ethnic slurs (Allard: A.400, 412, 414-15, 426-27, 429, 469). After defendant left the block, he noticed Wahib following him and talking on the telephone, so defendant confronted him 2 The knife could not be entered into evidence, because it had inadvertently been destroyed before trial (Sy: A.324, 330). 8 (Allard: A. 433, 476-78). Defendant admitted that he uttered the following statement, which was recorded by the 911 system during Wahib's cell phone call to 911: ~[Y]ou're calling the cops, let's wait for them, let's wait for them to come here to save your fucking Islamic, fucking Muslim ass" (Allard: A. 434-35, 443-44, 450-52) . Defendant testified that he did not wait for the police because he thought that the situation ~seemed really stupid" (Allard: A.436). Defendant said that, when the police caught up to defendant moments later and arrested him, the allegedly giddy, smiling, and effervescent Wahib supposedly walked up to defendant's face and blew him a kiss (Allard: A.436, 440-41). Defendant admitted to possessing the knife, but he denied that he used the knife during his encounter with Wahib (Allard: A.400-0l, 428). Defendant claimed that he used the knife only for cutting twigs or for cutting fishing line that entangled the legs of his horse (Allard: A.401-02). Defendant denied being a racist, denied using racial slurs, and denied ridiculing people on the basis of religion or ethnicity (Allard: A.399, 478-79). The Verdict and the Sentence On February 23, 2010, defendant was convicted of two counts of Menacing in the Second Degree as a Hate Crime (P.L. §§ 120.14[1]/485.05[1]) and was acquitted of two counts of 9 Aggravated Harassment in the Second Degree (P. L. § 240.30 [ 3]) (A. 483-87). On June 9, 2010, defendant was sentenced to concurrent terms of probation of five years on each count (A.489-90). The Appellate Proceedings Before Remittal Defendant appealed from his judgment of conviction to the Appellate Division, Second Department. In a brief dated January 30, 2013, defendant asserted, among other claims, that the trial court erroneously denied his motion to dismiss the indictment pursuant to C.P.L. § 30.30. 3 Defendant contended that the 32-day period from July 27 to August 28, 2007 was not excludable pursuant to C.P.L. § 30.30(4) (g), because Wahib's vacation overseas was not an exceptional circumstance and because the People did not exercise due diligence to procure Wahib's grand jury testimony before he left the country. Defendant argued that, if the 32 days that elapsed during this period was added to the 168 days that the trial court had held were chargeable to the People, then the total time chargeable to the People exceeded the People's statutory time limit in this case of 181 days. 3 Defendant's other claims were: (1) that the trial court should have suppressed defendant's knife, because the police did not have reasonable suspicion to stop defendant; and (2) that the trial court improperly allowed the People to introduce prior statements of Wahib to bolster his testimony that defendant had called him and others ftsand n******." 10 Defendant conceded that, in the trial court, his attorney did not challenge the People's assertion that the 32-day period from July 27 to August 28, 2007 was excludable pursuant to C. P. L. § 30.30(4) (g) because of Wahib's unavailability. Defendant, citing to People v. Goode, 87 N.Y.2d 1045, 1047 (1996), and People v. Luperon, 85 N.Y.2d 71, 77-78 (1995), acknowledged that it was "settled law" that, in order to preserve a challenge to the People's reliance upon a particular statutory exclusion, a defendant must "identify[] any legal or factual impediments to the use of that exclusion." But defendant argued that, if the Appellate Division held that his 30.30 claim was unpreserved, then the Appellate Division should nonetheless grant him relief, despite counsel's failure to challenge the applicability of C.P.L. § 30.30(4) (g) to the disputed period, because counsel's conduct constituted ineffective assistance. In their respondent's brief, the People argued that defendant's claim regarding the 32 days from July 27 to August 28, 2007, was unpreserved, because, in the trial court, defendant failed to challenge the People's assertion that this 32-day period was excludable pursuant to C.P.L. § 30.30(4) (g). The People further argued that defendant's C.P.L. § 30.30 claim should not be reviewed in the interest of justice, because, as a result of defendant having not challenged this exclusion in the trial court, 11 the People had had no reason to develop the record of the circumstances that supported the exclusion. In a decision and order dated January 8, 2014, the Appellate Division held defendant's appeal in abeyance and remitted the matter to the Supreme Court, Kings County, "to hear and report on the defendant's motion pursuant to CPL 30.30 to dismiss the indictment on the ground that he was denied the statutory right to a speedy trial" (A.6). People v. Allard, 113 A.D.3d 624, 625 (2d Dep' t 2014) . The Appellate Division explicitly held that defendant's contention with respect to the period from July 27 through August 28, 2007 was preserved for appellate review (A. 7) • 113 A.D.3d at 625. The Appellate Division stated that "the defendant sustained his initial burden on the motion by alleging that a period of unexcused delay in excess of six months had elapsed since the date that he was arraigned on the felony complaint" and that "the People failed to conclusively demonstrate with 'unquestionable documentary proof' requirement" (A. 7) • 113 A. D. 3d at § 210.45[5]; other citations omitted). The Hearing After Remittal that they satisfied that 625-26 (quoting C.P.L. On April 25, 2014, in accordance with the order of the Appellate Division, the Supreme Court, Kings County, held a 12 hearing on defendant's motion to dismiss the indictment pursuant to C.P.L. § 30.30. The People's Case HIZAM WAHIB, whose principal residence in 2006 was in Brooklyn, was twice called by the Kings County District Attorney's Office to testify in the grand jury (Wahib: A.496-98, 512). From as early as May to July 25, 2007, Wahib received one or two telephone calls from a prosecutor in the District Attorney's Office, in which Wahib told the prosecutor of his plans to be out of the country for four weeks of annual leave that his employer provided (Wahib: A.497, 502, 504, 508-09, 514-19, 529-30). The prosecutor asked Wahib, who had purchased a non-refundable plane ticket the previous winter, if he could change his plans, but the prosecutor did not attempt to stop Wahib from leaving (Wahib: A.503, 505-06, 517). On July 26, 2007, Wahib flew from New York to Yemen to visit family (Wahib: A.498-99, 501-02, 505, 526-27). On August 16, 2007, for personal reasons, Wahib returned to New York earlier than he had expected, but on the same day, he flew from New York to Florida. Four days later, Wahib went from Florida to North Carolina, where he spent the remainder of his vacation before returning to New York on August 26, 2007 (Wahib: A. 498, 502, 509-11, 519, 526). Wahib testified before the grand 13 jury one or more weeks after his return from vacation (Wahib: A. 511). Assistant District Attorney ("A.D.A.") BENJAMIN LIEBERMAN was assigned to defendant's case in late June or early July of 2007, after all but one of the counts of Indictment Number 9083/2006 had been dismissed (Lieberman: A.535-37, 548, 588) . 4 After conferring with his supervisors regarding the case, he decided to resubmit defendant's case to the grand jury (Lieberman: A. 538-39, 547, 602) . Between late June and July 25, 2007, A.D.A. Lieberman called Wahib more than once on the telephone and might have met him once in the office to discuss Wahib's availability to testify again in the grand jury (Lieberman: A.541-42, 544, 549, 559, 568). A.D.A. Lieberman could not re-present the case, because Wahib had told him that he would be traveling overseas (Lieberman: A. 543-44, 558) . A. D.A. Lieberman might have asked Wahib if he could stay for the grand jury re-presentation, but Wahib explained that his travelling overseas was something that he did annually at that time of year (Lieberman: A. 550). A.D.A. Lieberman took it "at face value" that Wahib would not be available for the re- presentation until he returned (Lieberman: A.558-59, 561). 4 Lieberman was no longer working for the District Attorney's Office at the time of the remittal hearing. 14 Because Wahib had been a cooperative witness, A.D.A. Lieberman did not subpoena Wahib to appear before the grand jury, did not apply for a material witness order, and did not communicate with him further before Wahib's trip (Lieberman: A. 551, 560-61, 567-68, 571, 599-601, 607). A.D.A. Lieberman re- presented the case to the grand jury, with Wahib as a witness, on September 5, 2007 (Lieberman: A.552). Defendant's Case Defendant rested at the hearing without calling any witnesses (A. 610). The Hearing Court's Decision In a decision and order dated August 20, 2014, the hearing court found that the People had failed to exercise due diligence in producing Wahib before the grand jury (A. 640-41) . As a consequence, the hearing court concluded that the 32-day period from July 27 to August 28, 2007 was chargeable to the People (A. 640-41) . In light of the court's earlier decision on defendant's C. P. L. § 30.30 motion, the hearing court determined that, when those 32 days were added to the time chargeable to the People, the People were chargeable with a total of 200 days, which exceeded the six-month period in which the People were required to be ready for trial (A. 641-42). indictment (A.641). 15 The hearing court dismissed the The Appellate Proceedings After Remittal In a supplemental brief to the Appellate Division dated October 8, 2014, defendant reiterated his arguments, which he had raised for the first time on appeal, that Wahib's vacation was not an exceptional circumstance under C.P.L. § 30.30(4) (g) and that, in any event, the People did not exercise due diligence to procure Wahib's testimony before he left on vacation. In a supplemental brief to the Appellate Division dated November 7, 2014, the People reiterated their argument that, notwithstanding the Appellate Division's initial determination that defendant's C.P.L. § 30.30 claim was preserved for appellate review, the claim in fact was unpreserved, because the lower court had not expressly decided the questions whether Wahib' s vacation was an exceptional circumstance or whether the People had been diligent in obtaining Wahib's testimony before he departed. The People argued further that the Appellate Division's initial determination was inconsistent with the preservation rule for C. P. L. § 30. 30 claims articulated by the Court of Appeals in People v. Beasley, 16 N.Y.3d 289 (2011); People v. Goode, 87 N.Y.2d 1045 (1996); and People v. Luperon, 85 N.Y.2d 71 (1995). Alternatively, the People argued that they had been diligent, under C.P.L. § 30.30(4) (g), because the hearing testimony showed 16 that they had asked Wahib if he could change his vacation plans, which, under the circumstances, was all that was required. In a reply brief dated November 21, 2014, defendant addressed the People's preservation argument by calling it "a thinly- disguised reargument of an already-decided issue" (Supplemental Reply Brief at 4). By motion dated December 11, 2014, the People moved in the Appellate Division for permission to file a second supplemental brief. The People argued that, during the supplemental briefing after remittal, the People had sought to inspect the Supreme Court's file, but the file was missing. After supplemental briefing was complete, the Supreme Court's file was found and was made available to the People. Upon inspection of the Supreme Court file, the People discovered an affirmation of actual engagement, dated July 26, 2007, signed by defendant's trial counsel, Jeffrey T. Schwartz, Esq. (A. B). In that affirmation, defense counsel stated that he would be unable to appear in court on July 26, 2007, because he was actually engaged in a criminal case pending in New Jersey, and he asked the court to adjourn defendant's case for one month (A.B). Defense counsel's affirmation of engagement appeared to have been delivered to the court by means of a fax machine (A. 8) . There was no affidavit of service attached to the affirmation, nor 17 was there any other indication that this affirmation had ever been served on the People. In light of this document, the People sought permission from the Appellate Division to file a second supplemental brief, to allow the People to address whether the 32-day period from July 27 to August 28, 2007 was excludable pursuant to C.P.L. § 30.30 ( 4) (b), because defense counsel's affirmation of actual engagement proved that counsel had requested and consented to ·the adjournment on July 26, 2007. By answer dated December 19, 2014, defendant opposed the People' s motion to file a second supplemental brief. Defendant argued that the People's C.P.L. § 30.30(4) (b) argument was unpreserved for appellate review. Defendant argued, in the alternative, that the exclusion set forth in C.P.L. § 30.30(4) (b) did not apply to the disputed period because the People had indicated their unreadiness for trial before defense counsel had submitted his affirmation of actual engagement. By order dated February 27, 2015, the Appellate Division granted the People's motion to file a second supplemental brief. In a second supplemental brief dated March 10, 2015, the People contended that the 32-day period from July 27 to August 28, 2007 was excludable pursuant to C.P.L. § 30.30(4) (b), because defense counsel's affirmation of actual engagement proved that 18 defense counsel requested and consented to this adjournment. The People argued that their 30.30 (4) (b) argument was reviewable on appeal, even though it had not been raised in the lower court, because defendant would have been unable to counter this argument factually if it had been raised in the lower court. The People also reiterated their position that defendant's claim concerning the applicability of the C. P. L. § 30.30 ( 4) (g) exclusion to the disputed period was unpreserved. The People argued that if the Appellate Division, in the exercise of its interest of justice jurisdiction, were to consider defendant's arguments regarding the C.P.L. § 30.30(4) (g) exclusion, which were raised for the first time on appeal, then the Appellate Division should also consider the People's argument regarding the C. P. L. § 30.30(4) (b) exclusion, which was also being raised for the first time on appeal. In a second supplemental reply brief dated March 16, 2015, defendant reiterated his contention that the People's argument regarding the C.P.L. § 30.30(4) (b) exclusion was unpreserved, and defendant contended further that he could have countered that argument if it had been raised in the lower court. Defendant also challenged the People's contention that defendant's claim regarding the C.P.L. § 30.30(4) (g) exclusion was unpreserved, noting that the Appellate Division had already found that 19 defendant's C.P.L. § 30.30(4) (g) claim was preserved. Lastly, defendant argued that any deficiency in his preservation of his C.P.L. § 30.30 claim "ha[d] now been cured by the full development and resolution, before the hearing court, of the facts and issues" (Seonc Supplemental Reply Brief at 9-10). In a decision and order dated May 27, 2015, the Appellate Division reversed defendant's judgment of conviction, on the law, granted defendant's C.P.L. § 30.30 motion, and dismissed the indictment (A. 4) . People v. Allard, 128 A.D.3d 1081 (2d Dep't 2015). The Appellate Division held that the 32-day period from July 27 to August 28, 2007 was not excludable pursuant to C.P.L. § 30.30 ( 4) (g) , because the People failed to exercise due diligence to make the complainant available (A.5). 128 A.D. 3d at 1082. The Appellate Division also held that the People's claim that this period was excludable pursuant to C.P.L. § 30.30(4) (b) was unpreserved and stated that defendant could have countered the argument if the People had raised the argument in the trial court (A. 5) • 128 A.D.3d at 1082. Because of its holding regarding defendant's C.P.L. § 30.30 claim, the Appellate Division did not reach defendant's two remaining claims (A.5). 128 A.D.3d at 1082. In a certificate dated September 3, 2015, the People were granted leave to appeal to this Court (A.3). People v. Allard, 26 N.Y.3d 965 (2015) (Fahey, J.). 20 ARGUMENT THE APPELLATE DIVISION'S HOLDING THAT DEFENDANT PRESERVED HIS C.P.L. § 30.30 CLAIM FOR APPELLATE REVIEW IS ERRONEOUS, BECAUSE, PRIOR TO THE DETERMINATION OF THE C.P.L. § 30.30 MOTION, DEFENDANT DID NOT CHALLENGE THE PEOPLE'S ARGUMENT THAT THE PERIOD AT ISSUE WAS EXCLUDABLE PURSUANT TO C.P.L. § 30.30(4) (g), AND BECAUSE THE TRIAL COURT DID NOT EXPRESSLY DECIDE THE QUESTION THAT DEFENDANT RAISED ON APPEAL REGARDING THE EXCLUDABILITY OF THAT PERIOD. The Appellate Division erred when it held that defendant had preserved for appellate review his C. P. L. § 30.30 claim. Defendant's C. P. L. § 30.30 claim is unpreserved because, in the trial court, prior to the determination of his motion to dismiss the indictment pursuant to C.P.L. § 30.30, defendant never challenged the People's argument that the 32-day period from July 27 to August 28, 2007 was excludable pursuant to the exceptional circumstances provision of C. P. L. § 30.30 ( 4) (g), and because, when the trial court decided the C.P.L. § 30.30 motion, that court did not expressly decide the question that defendant first raised on appeal regarding the excludability of that period. Furthermore, contrary to defendant's contention in the Appellate Division, the hearing on the C.P.L. § 30.30 motion, which was held on remittal from the Appellate Division while defendant's appeal was being held in abeyance, did not transform this unpreserved claim into a preserved claim. 21 Because the Appellate Division erred by concluding that defendant's C.P.L. § 30.30 claim presents a question of law, the Appellate Division's order should be reversed and the case should be remitted to the Appellate Division for that court to decide whether to review this claim as a matter of discretion in the interest of justice. See C.P.L. §§ 470.40(2), 470.15(6)(a); People v. Autry, 75 N.Y.2d 836, 839 (1990); People v. Creech, 60 N.Y.2d 895 (1983); People v. Cona, 49 N.Y.2d 26, 34 (1979). "The procedure for preserving an argument in a CPL 30. 30 motion is well established." People v. Beasley, 16 N.Y.3d 289, 292 (2011). First, a defendant meets his initial burden "simply by alleging only that the prosecution failed to declare readiness within the statutorily prescribed time period." Id. (quoting People v. Goode, 87 N.Y.2d 1045, 1047 [1996] ); see People v. Luperon, 85 N.Y.2d 71, 77-78 (1995). Second, after the People identify the statutory exclusions upon which they are relying, the defendant must "identify[] any legal or factual impediments to the use of those exclusions." Beasley, 16 N.Y. 3d at 292 (quoting Goode, 87 N.Y.2d at 1047); see Luperon, 85 N.Y.2d at 78. Here, defendant met his initial burden by asserting, in his motion to dismiss the indictment pursuant to C.P.L. § 30.30, that more than six months of time had passed since the filing of the felony complaint. Among the periods that defendant specifically 22 alleged were chargeable against the People was a 97-day period from May 31 to September 5, 2007. In the People's answer to defendant's motion to dismiss the indictment, the People argued that 32 days of that period, from July 27 to August 28, 2007, were excludable under the exceptional circumstances provision of C.P.L. § 30.30(4)(g). The People explained that, during this 32-day period, they were unable to call the complainant, Hizam Wahib, to testify before the grand jury, because Wahib was out of the country and beyond their control. Defendant did not challenge, either orally or in writing, at any time before the determination of the C. P. L. § 30.30 motion, the People's assertion that the period from July 27 to August 28, 2007 was excludable pursuant to C.P.L. § 30.30(4) (g). Defendant never alerted the trial court to the arguments that he first presented on appeal to the Appellate Division, namely, his arguments: (1) that Wahib's overseas travel did not fall within the exceptional circumstances provision of C. P. L. § 30.30 ( 4) (g) because Wahib was on vacation when he was overseas, and (2) that the People did not satisfy the due diligence requirement of C.P.L. § 30.30(4) (g) because the People did not establish that they could not have presented Wahib's testimony to the grand jury before he left the United States. Because, prior to the determination of the C.P.L. § 30.30 motion, defendant did not alert the trial court 23 to these arguments or otherwise "identify [] any legal or factual impediments to the use" of the C. P. L. § 30.30 ( 4) (g) exclusion (see Beasley, 16 N.Y.3d at 292), defendant failed to preserve his C.P.L. § 30.30 claim for appellate review. Indeed, the circumstances surrounding the preservation issue in this case resemble the circumstances surrounding the preservation issue in People v. Beasley, 16 N.Y.3d 289 (2011). In Beasley, the defendant claimed, in his C.P.L. § 30.30 motion, that the People should be charged with a 42-day period from August 17 to September 28, 2005. In response, the People argued that that 42-day period was excludable pursuant to C. P .L. § 30.30 ( 4) (a) because, during that period, the decision on the sufficiency of the grand jury minutes was pending. "Defendant did not file a reply, nor was there oral argument on the motion." Beasley, 16 N.Y.3d at 291. On appeal, the defendant in Beasley claimed, for the first time, that the 13 days from August 17 to August 30, 2005 should have been charged to the People because the People did not timely provide the grand jury minutes to the court. This Court held that the claim was unpreserved, because the defendant "made no argument at all refuting the People's contention that the entire period was excludable" and because he never drew the trial court's attention to his specific argument regarding the 13 days from August 17 to August 30, 2005. Id. at 291, 292. 24 Similarly, in this case, defendant never made any argument at all, at any time before the determination of the C. P. L. § 30. 30 motion, refuting the People's contention that the 32 days from July 27 to August 28, 2007 were excludable pursuant to C.P.L. § 30.30 (4) (g). In addition, defendant never drew the trial court's attention to the arguments that he later advanced on appeal. In these circumstances, under the legal standard set forth in this Court's decisions in Beasley, Goode, and Luperon, defendant's claim is unpreserved. Rather than citing Beasley, Goode, or Luperon, the Appellate Division cited People v. Hampton, 21 N.Y.3d 277, 284 n.2 (2013), and People v. Prado, 4 N.Y.3d 725 (2004), as authority for its holding that defendant had preserved his C.P.L. § 30.30 claim for appellate review. See A.7; People v. Allard, 113 A.D.3d 624, 625 (2d Dep't 2014). Neither Hampton nor Prado, however, involved preservation of C. P. L. § 30.30 claims or supports the Appellate Division's conclusion that defendant's C.P.L. § 30.30 claim is preserved for appellate review. Hampton involved a defendant's claim that a replacement judge should not have decided the defendant's motion for a trial order of dismissal -- and consequently, that a mistrial should have been declared -- because the defendant had already orally argued the motion before the original judge, who then recused himself because 25 of a conflict. 21 N.Y.3d at 281-83. In the trial court before conviction, the defendant did not cite Judiciary Law § 21 as the basis of his claim. Id. at 284 & n.2. This Court held that the claim as it pertained to Judiciary Law § 21 was preserved for appellate review, despite defendant's failure to raise it in the trial court, because the trial court "'expressly decided the question raised on appeal' in response to defendant's objection." Id. at 284 n.2 (quoting C.P.L. § 470.05[2]). Prado involved a defendant's claim that evidence was legally insufficient because of a lack of corroboration of the defendant's confession. 4 N.Y.3d at 726. In the trial court, the defendant made only a general motion for a trial order of dismissal. Id. This Court nevertheless held that the claim was preserved for appellate review, because "the question now on appeal was expressly decided by that court." Id. (citing C.P.L. § 470.05). Thus, the rule of Hampton and Prado, which rests on the language of C.P.L. § 470.05(2), is that a specific claim is preserved for appellate review as long as the trial court, in response to a protest by a party, "expressly decided" that claim (see C.P.L. § 470.05[2]), regardless of the specificity or basis of the objection that prompted the trial court's ruling. This rule does not support the Appellate Division's holding that defendant preserved his C.P.L. § 30.30 claim. In its decision on 26 defendant's C.P.L. § 30.30 motion, the trial court excluded the 32-day period from the calculation, stating only, "The people contend and the defense does not dispute that the complaining witness was in Egypt between July 27 and August 28 and beyond the control of the people" (A. 42) . The trial court's decision was consistent with the case law holding that a material witness's travel outside New York State constitutes an exceptional circumstance pursuant to C.P.L. § 30.30(4) (g). See People v. Carter, 285 A.D.2d 384 (1st Dep't 2001) (complainant's travel to Yemen and difficulties in obtaining visa to return to the United States constituted an exceptional circumstance for purposes of C.P.L. § 30.30[4][g]); People v. Samuels, 224 A.D.2d 261 (1st Dep't 1996) (complainant's absence from the country constituted an exceptional circumstance for C.P.L. § 30.30 purposes); People v. Williams, 293 A.D.2d 557 (2d Dep't 2002) (key prosecution witness's military deployment in Kosovo constituted an exceptional circumstance for purposes of C.P.L. § 30.30[4] [g]). The trial court never addressed the claim -- which defendant first asserted on appeal to the Appellate Division that, because Wahib traveled outside the jurisdiction for vacation reasons, rather than for other reasons, Wahib's absence from New York State did not fall within the exceptional circumstances provision of C.P.L. § 30.30(4) (g). The trial court also never 27 addressed the question of whether the People had satisfied the due diligence requirement of C.P.L. § 30.30(4) (g). Thus, in this case, in contrast to Hampton and Prado, defendant's claim is unpreserved, because the trial court, in response to a protest by defendant --which, in this case, was his C.P.L. § 30.30 motion did not "expressly decide []" the questions that defendant first raised on appeal. See C.P.L. § 470.05(2). Consequently, the Appellate Division's preservation ruling was erroneous, and that court's reliance on Hampton and Prado to support the preservation ruling was misplaced. Indeed, the Appellate Division's overly broad application of Hampton and Prado is irreconcilable with, and would effectively nullify, the rule of Beasley, Luperon, and Goode, which is that a defendant must challenge the People's assertion of a statutory exclusion in order to preserve a C. P. L. § 30.30 claim for appellate review (unless, in response to the C.P.L. § 30.30 motion, the trial court "expressly decided" the question raised on appeal [see C.P.L. § 470.05 (2) l). In the Appellate Division, defendant argued that the hearing after remittal, at which "the facts and argument in the speedy trial claim were fully vetted," cured any deficiency in preserving his claim for appellate review, "regardless of any previous view on preservation" (Defendant's Second Supplemental 28 Reply Brief at 9). Defendant's argument raises the extraordinary notion that, even if a claim is unpreserved for appellate review when a defendant first raises the claim on appeal, the claim can, during the appeal, be transformed into a preserved claim. Defendant's argument should be rejected because, for the following reasons, the hearing after the Appellate Division remitted the case did not preserve his C.P.L. § 30.30 claim for appellate review. One reason is that the Appellate Division's remittal of the case was not to give defendant a second chance to preserve his claim, but to flesh out the facts of a claim that, according to the Appellate Division, was already preserved. See A. 7; Allard, 113 A.D.3d at 625. The Appellate Division could have remitted the case, in the exercise of its interest of justice jurisdiction, for the Supreme Court to conduct a hearing, in which event the issue of preservation would have been irrelevant to review of defendant's claim, but the Appellate Division did not do so. See C.P.L. § 470.15(6) (a). Indeed, after the hearing, the Appellate Division granted defendant relief on his C. P. L. § 30.30 claim "on the law," not as a matter of discretion in the interest ,of justice, and without suggesting that that court had reconsidered its earlier explicit holding that the claim was preserved. See A.4; Allard, 128 A.D.3d at 1081. 29 Another reason why defendant's argument should be rejected is that it is incompatible with several provisions of the Criminal Procedure Law, which state that, for a defendant to preserve an issue for appellate review, the defendant must register the appropriate protest in the trial court before the verdict. C.P.L. § 470.15 (4) (a) provides that an intermediate appellate court's determination is deemed to be on the law, where the determination concerns a "ruling or instruction of the court, duly protested by the defendant, as prescribed in subdivision two of section 470.05, at a trial resulting in a judgment" (emphasis added). The use of the past tense of "protest" requires that a claim be preserved in the trial court before the judgment results and does not contemplate preserving a claim by asserting the protest during the appeal. See Cona, 49 N.Y.2d at 33 ("the Appellate Division, if it deems it appropriate, may exercise its discretionary power to review alleged errors even in the absence of that timely objection which is necessary to create questions of law") . Further support for the theory that an issue cannot be preserved for appellate review during the pendency of an appeal 'is found in C.P.L. § 470.15(6), which defines determinations of an intermediate appellate court that are not deemed to be on the law, but instead are deemed to be made as a matter of discretion in the interest of justice. C. P.L. § 470.15 (6) (a) states that an 30 intermediate appellate court's determination is deemed to be made as a matter of discretion in the interest of justice when it concerns "an error or defect occurring at a trial resulting in a judgment, which error or defect was not duly protested at trial as prescribed in subdivision two of section 470.05 so as to present a question of law" (emphasis added). Thus, C. P.L. § 470.15 (6) (a) also contemplates that a question of law must be preserved by a protest registered prior to the conclusion of the trial and not during the pendency of an appeal. C.P.L. § 470.05(2) also supports the conclusion that an issue cannot be preserved for appellate review by raising it, for the first time, after the verdict. C.P.L. § 470.05(2) states, in relevant part: For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. (Emphasis added). The use of the past tense "was registered" and "had an opportunity," which describe what has to be done to preserve a claim and when it has to be done, shows that, for a claim to be preserved for appellate review, a protest must be registered before the claim is raised on appeal. Thus, that 31 statutory language does not contemplate preserving a claim by a protest that is not registered until after the appeal is taken. Another provision that undermines defendant's novel theory is C. P. L. § 330. 30 ( 1) , which allows a verdict to be set aside or modified on any ground "which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court." This provision assumes that, to present a ground that "would require a reversal or modification of the judgment as a matter of law by an appellate court," a claim must be preserved for appellate review by a protest that is registered prior to the filing of the C.P.L. § 330.30 motion. Indeed, this Court has long held that raising a claim for the first time in a motion to set aside the verdict pursuant to C.P.L. § 330.30(1) does not preserve the claim for appellate review. See People v. Davidson, 98 N.Y.2d 738, 739 (2002); People v. Pressley, 94 N. Y .2d 935, 937 (2000); People v. Laraby, 92 N.Y.2d 932 (1998); People v. Padro, 75 N.Y.2d 820 (1990). If this Court adopted defendant's view that a claim could be preserved by a protest that is not registered until after an appeal is taken, then a trial court adjudicating a C.P.L. § 330.30(1) motion could not decide if a claim is unpreserved for appellate review, because that court would not know whether the 32 appellate court would allow the defendant to preserve the claim after the appeal is taken. Thus, if a C.P.L. § 330.30(1) motion, filed before the imposition of sentence, cannot preserve a claim that had not already been preserved before the verdict was rendered, then it is even clearer that the adjudication of an appeal, taken after the imposition of the sentence, likewise cannot preserve a claim. Lastly, allowing an unpreserved claim to become preserved after the appellate process has begun would undermine the interest in finality that is furthered by the preservation requirement. "The requirement that a claim must be timely raised in order to create a question of law is grounded in large part in the need to preserve limited judicial resources and avoid untoward delay in the resolution of criminal proceedings .. . Any other rule would serve as an invitation to delay and could result in an unmanageable morass of collateral proceedings within each prosecution. Hence, it is both proper and necessary for the State to require that all such objections be raised at a time when they can be dealt with most readily." People v. Michael, 4 8 N.Y. 2d 1, 6 (1979). Defendant's case illustrates the deleterious consequences of delay in the assertion of a claim of error regarding a trial court's ruling. By waiting until his case was on appeal to 33 supposedly preserve his C. P. L. § 30. 30 claim, the hearing regarding the applicability defendant delayed of the C.P.L. § 30.30 ( 4) (g) exclusion by more than five years. By that time, the witnesses' recollections had faded, thus potentially impeding the ability of the courts to determine the relevant facts (see, ~, 504-05, 528 [lack of recollection as to which A.D.A. contacted Hizam Wahib, and when], 506-07 [lack of recollection as to when Wahib purchased plane ticket], 517 [lack of recollection as to what Wahib told A.D.A.], 541-42, 549 [lack of recollection as to when A.D.A. Lieberman spoke with Wahib]). Therefore, if, in this Court, defendant raises his argument that the hearing on his C.P.L. § 30.30 claim after remittal from the Appellate Division transformed that claim from an unpreserved claim to a preserved claim, then defendant's argument should be rejected. * * * Because the Appellate Division held that defendant's C.P.L. § 30. 30 claim was preserved for appellate review, the Appellate Division apparently concluded that it was constrained to address the merits of that claim as a matter of law. If, instead, the Appellate Division had correctly concluded that the C.P.L. § 30.30 claim is unpreserved for appellate review, then the Appellate Division would have had discretion whether to grant relief with 34 respect to defendant's claim in the interest of justice, regardless of whether the claim might have any merit. After all, the right to a speedy trial under C.P.L. § 30.30 "is a matter of legislative grace." People v. Lawrence, 64 N.Y.2d 200, 205 (1984). Moreover, in considering whether to grant relief in the interest of justice in this particular case, the Appellate Division could consider defense counsel's affirmation of actual engagement an unambiguous, written, signed statement, dated July 26, 2007, that counsel was actually engaged in a matter in New Jersey and that he therefore "request [ed] a 1 month adjournment" (A. 8) which proves that defense counsel requested the delay from July 27 to at least August 27, 2007 (because August 26, 2007 was a Sunday), and that therefore defendant's right to a speedy trial under C. P. L. § 30.30 was not, in fact, violated. See C.P.L. § 30.30 (4) (b); People v. Meierdiercks, 68 N.Y. 2d 613, 614 (1986) (where defendant requests or consents to delay, defendant waives any objection to that delay); ~ also People v. Fagan, 260 A.D.2d 219 (1st Dep't 1999); People v. Delacruz, 241 A.D.2d 328 (1st Dep't 1997); People v. Cambridge, 230 A.D.2d 649 (1st Dep't 1996); People v. Gerstel, 134 A.D.2d 281 (2d Dep' t 1987) (each case requiring exclusion of time requested by defense counsel through written or oral notice of actual engagement). 35 Accordingly, the order of the Appellate Division should be reversed and the case should be remitted for that court to consider whether to review defendant's C.P.L. § 30.30 claim in the interest of justice. See Autry, 75 N.Y.2d at 839 (where Appellate Division had reversed a judgment on the law based upon an erroneous determination that a claim was preserved, this Court remitted the case to the Appellate Division to permit that court to exercise its interest of justice jurisdiction); Creech, 60 N.Y.2d at 896 (same); Cona, 49 N.Y.2d at 33-34 (same). 36 CONCLUSION THE ORDER OF THE APPELLATE DIVISION SHOULD BE REVERSED, THE JUDGMENT OF CONVICTION SHOULD BE REINSTATED, AND THE CASE SHOULD BE REMITTED TO THE APPELLATE DIVISION FOR THAT COURT TO DETERMINE WHETHER TO REACH DEFENDANT'S CLAIM IN THE INTEREST OF JUSTICE. Dated: Brooklyn, New York February 10, 2016 LEONARD JOBLOVE THOMAS M. ROSS Assistant District Attorneys of Counsel Respectfully submitted, KENNETH P. THOMPSON District Attorney Kings County 37