Laurence L. Rothstein, Brooklyn, for defendant.
Richard A. Brown, District Attorney of Queens County (Lauren Rocklin of counsel), for plaintiff.
Charles J. Markey, J.
By motion dated July 10, 2001, defense counsel moves to dismiss the complaint alleging that the defendant's statutory right to a speedy trial was violated. (See CPL 30.30.) The court rendered a decision and order, dated September 20, 2001, denying the motion to dismiss. The court determined that only 39 days should be charged to the People and found that both sides had been responsible for occasioning the delay.
Defendant Ana Maisonave makes an oral application to this court to reconsider its decision, because her reply memorandum of law, filed with the Clerk's Office on September 14, 2001, had not been forwarded to this court and therefore had not been considered in rendering its decision.
The defendant resides with her two children, Victorious (born on March 21, 1987) and Annie (born August 7, 1984), at 226-31 Mentone Avenue, in the County of Queens. The Criminal Court complaint states that the defendant admitted to a police officer that she stored a loaded handgun atop her entertainment center. On April 2, 2001, her son Victorious allegedly bumped into the piece of furniture and the gun fell from its top. Her son fired the gun and sustained physical injury to his stomach from the recoil of the gun. The defendant, by a misdemeanor complaint, dated April 7, 2001, is accused of the crimes of endangering the welfare of a child (two counts) (Penal Law § 260.10), reckless endangerment in the second degree (Penal Law § 120.20), and harassment in the second degree (two counts) (Penal Law § 240.26).
The principal contention of the motion centers on the alleged inability of the People, to date, to secure a supporting deposition from the defendant's children.
Having been supplied with the defense reply memorandum of law, the court will amend its original decision. In particular, the court previously accepted the statement of the prosecutor that the defendant Ana Maisonave refused to permit detectives from the Office of the Queens County District Attorney to interview her son, Victorious, who fired the gun and allegedly sustained physical injury from the weapon's recoil. Defense counsel maintains, in the reply memorandum now being considered by the court, that his client was not responsible for thwarting the efforts of the prosecutor to secure the cooperation of Victorious, because it was the defendant's minor daughter who answered the door on that occasion, explaining that her mother was at work.
Defendant further maintains that the People could have sought other ways to secure Victorious's cooperation, whether by grant of immunity or with the help of the Corporation Counsel's Office, but did not do so. Defendant also alleges that the People put Victorious in an untenable position of either actively helping the prosecution of his mother or being prosecuted on an alleged weapons charge.
Although defense counsel makes sincere and cogent arguments, the court finds that the circumstances of this case are not such that offend the principles and parameters of CPL 30.30. ...