A Bronx Grand Larceny Lawyer said that, defendant was arrested on December 31, 1986 and charged with grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, reckless endangerment in the first degree, unauthorized use of a vehicle in the third degree, and resisting arrest. He has moved for an order dismissing the action pursuant to CPL 170.30(1)(e) on the ground that he has been denied his statutory speedy trial right under CPL 30.30. The action was commenced on January 1, 1987 when the defendant was arraigned on felony and misdemeanor charges. On January 5, 1987, the People reduced the felony charges to misdemeanors and requested a further adjournment. The People were required to be ready for trial within 90 days of the date of this reduction.
A Bronx Criminal Lawyer said that, on February 3, 1987 the defendant did not appear in court and a warrant was issued for his arrest. The People did not then announce their readiness for trial. On March 11, 1987 the defendant was returned on the warrant and the case was adjourned. On March 16, 1987 the People sought a further adjournment for purposes of obtaining a corroborating affidavit. On March 23, 1987 the prosecution did not have the affidavit and again requested an adjournment in order to secure it. On April 9, 1987 the People again were not ready and sought additional time to procure the corroborating affidavit. The presiding judge adjourned the case until April 22, 1987, indicating on the record of court action: “Adjournment period to be charged under 30.30 CPL.” On April 22, 1987 the People filed a corroborating affidavit and the complaint was converted to information. This motion followed.
A Bronx Grand Larceny Lawyer said that, at no time did the defendant ever waive prosecution by information, and the record is devoid of any indication that he requested or consented to any of the adjournments. Notably, at no point during the period from the reduction of the charges to the filing of the corroborating affidavit–a period of 107 days–did the People ever announce their readiness for trial.
The issue in this case is whether, on the facts presented here, the period of time during which the defendant did not appear in court and warrants for his arrest had been issued should be charged against the People.
The defense urges that the case be dismissed because 107 days elapsed without the People’s having converted two of the three complaints 1 to information and without the People having been ready for trial on any of the three dockets pending against defendant. The defendant’s failure to appear on the case for 36 days, it is argued, did not impair the People’s ability to convert the complaints to information’s and announce readiness for trial; ergo, this time must be charged against the People. The People’s response asserts that a 1984 amendment to CPL 30.30(4)(c) legislatively overruled Colon, and that the new statute requires that the 36-day period of delay commencing from the day the court issued a bench warrant to the day the defendant subsequently appeared in court be excluded from the time period chargeable to the People.
This court must thus determine what remains of the Colon rule under the new statute, where the defendant fails to appear in court, a bench warrant is issued upon which the defendant is later returned, and the prosecution fails both to file prosecutable information and to announce readiness within the prescribed period.
The purpose of CPL 30.30, as explained by the Court of Appeals, is to impose upon the prosecution an obligation to be ready to try the case within certain defined time periods. To meet this obligation, the People must announce on the record their actual, present readiness to try the case. Once, the defendant has shown the existence of an unexcused delay greater than three months, the burden of showing that the time should be excluded falls upon the People.
The apparent intent of the legislature in enacting the amendment was to alleviate the prosecutor’s obligation of preparing a case for trial when the defendant had absconded and a bench warrant had issued for his arrest. The bill was part of the Governor’s 1984 Legislative Program, and in his legislative memorandum submitted in support of the amendment, the Governor stated that the bill would exclude from the period within which a prosecutor must be ready for trial the period extending from the day on which a bench warrant is issued for a defendant who is absent or unavailable because he has escaped from custody or has failed to appear in court when required, to the day on which the defendant subsequently appears in court pursuant to a bench warrant or voluntarily or otherwise. The bill is intended to correct a problem created by the Court of Appeals decision in which the Court ruled that the absence or unavailability of the defendant did not prevent the filing of an indictment and that, therefore, failure to file an indictment did not “result from” the defendant’s absence.
The new provision did provide the People with an alternate to satisfying the dictates of Sturgis and Colon. To successfully rely on 30.30(4)(c) to exclude time due to a defendant’s absence, the People now may show either that the delay resulted from the defendant’s absence or unavailability (as was required under the old law), or, in the alternative, that a bench warrant was outstanding and that the defendant was “absent” or “unavailable” as those terms are defined in the statute. The relief given to prosecutors under the new law, therefore, is that proving the delay to have been the result of the defendant’s absence or unavailability is no longer required, provided that the defendant is shown to be absent or unavailable and a bench warrant has issued.
In the present case, the People did not allege any facts in their “Answering Affirmation” indicating that the delay “resulted from” defendant’s absence. Thus, as was true in Colon, the defendant’s failure to appear in court during part of the 90-day period neither prevented the People from converting the complaint to information nor hindered the prosecution’s ability to be ready to try the case. This is not a case in which the People had announced their readiness for trial but could not proceed solely because the defendant absented himself. Although subsequent to defendant’s return on the warrant, the People did in this case convert the complaints to information’s, at no time did they announce their readiness for trial.
Nor is this a situation, such as occurred in Worley itself, in which a defendant is estopped from contesting the delay by virtue of his having consented to an adjournment for the making of motions. In Worley, the Court of Appeals clearly distinguished between the excludable period of delay for motions under CPL 30.30(4)(a), and the includable period under CPL 30.30(4)(c) when a bench warrant has been issued against the defendant, stating: The case decisions are also distinguishable from these appeals because they address policy concerns unique to subdivision 4(c).
As the People’s answering papers failed to raise any issue of fact as to whether the delay resulted from the defendant’s absence or unavailability, they are left with having to maintain that a bench warrant was issued and that the defendant was “absent” or “unavailable” as those terms are defined under the statute, if the 36-day period is to be excluded. Contrary to the People’s contention, merely establishing that a warrant was issued does not satisfy the terms of the statute as amended. Such an interpretation ignores the amendment’s explicit language requiring that the defendant be “absent or unavailable,” and violates the principle of statutory construction that every word of a statute is to be given meaning and effect. Furthermore, the 1984 amendment left intact the definitions of “absent” and “unavailable” contained in 30.30(4)(c), and those definitions must be read together with the amendatory language in interpreting the statute as amended.
This reading of 30.30(4)(c) is congruent with the legislative intent, which was to relieve the prosecution of its duty to be ready for trial where a defendant was absent or unavailable, a bench warrant was outstanding, and the People could not show that the delay was the result of the defendant’s absence or unavailability. There was no apparent intent to eliminate the requirement that there be some showing that the defendant was either absent (i.e., his location was unknown and he was attempting to avoid apprehension or prosecution, or his location could not be determined by due diligence), or that he was unavailable (i.e., his location was known but his presence for trial could not be obtained by due diligence). Moreover, adherence to these requirements does not undermine the public policy of eliminating unnecessary court and grand jury appearances for victims and witnesses, since prosecutors can easily demonstrate due diligence in seeking to locate a defendant without having to inconvenience such parties.
In the present case, the prosecution did not even allege that the defendant was absent, i.e., that his location was unknown and that he was attempting to avoid apprehension or prosecution, or that his location could not be determined by the People’s exercise of due diligence. Neither did the People contend that defendant was unavailable, i.e., that his presence for trial could not be secured with due diligence. In fact, here the People made no averment that they had ever exercised due diligence to attempt to locate the defendant.
The delay in indicting the defendant there was the product of the prosecutor’s well established policy of not indicting defendants who were absent in order to avoid inconveniencing the grand jury and its witnesses. Under these circumstances, the People have failed to meet their burden of demonstrating that the 36-day period in question should be excluded. Therefore, the time during which the defendant did not appear and the People did not file a corroborating affidavit must be charged to the People. A total of 107 chargeable days have elapsed without the People having been ready for trial.
Accordingly, the court held that the defendant’s motions to dismiss pursuant to CPL 170.30 and 30.30 are granted.
The right to speedy trial is a constitutional right; if the same is violated seek the representation of a Bronx Grand Larceny Attorney and Bronx Criminal Attorney inorder to have your case dismissed. Stephen Bilkis and Associates can help you. Call us.