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The People of the State of New York v. Kevin Clark (N.Y.App.Term 03/15/2013)

New York SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


March 15, 2013

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
KEVIN CLARK, APPELLANT.

Appeal from a judgment of the District Court of Suffolk County, First District (Dennis M. Cohen, J.), entered March 31, 2011.

People v Clark (Kevin)

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 15, 2013

PRESENT: NICOLAI, P.J., and IANNACCI, J.

The judgment convicted defendant, upon a jury verdict, of driving while intoxicated per se.

ORDERED that the judgment of conviction is affirmed.

In 2008, defendant was charged with driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). On June 3, 2009, the People announced that they were not ready for trial and informed the court that they had "called the precinct" and confirmed that the police officer witness would not return from active duty overseas until January of 2010. The case was then adjourned to July 29, 2009, and, on that date, the People were not ready for trial and informed the court that they had no update as to when the officer would return. On the following adjourned date of October 21, 2009, the People again were not ready for trial and informed the court that it was their understanding that the police officer would be deployed through the end of the year. By notice of motion returnable in November 2009, defendant moved to dismiss the accusatory instrument on the ground that his statutory speedy trial rights (CPL 30.30 [1] [b]) had been violated in that more than 90 days had expired from June 3, 2009 to October 21, 2009, during which time the People had not been ready. By order dated February 2, 2010, the District Court denied defendant's motion finding, among other things, that this time period was excludable pursuant to the exceptional circumstances provision of CPL 30.30 (4) (g).

Prior to jury selection in January 2011, defense counsel made an oral application to renew defendant's CPL 30.30 motion because he had just been informed that, contrary to the People's prior assertions, the police officer witness had not been deployed overseas, but had been stationed in the United States during the relevant period of time. The People responded that, during the relevant period of time, they had been informed that the police officer was deployed overseas but, in any event, the witness had been unavailable since he had been out of state on active military duty during this period. The court denied defendant's application. Thereafter, defendant was convicted, upon a jury verdict, of driving while intoxicated per se and acquitted of driving while intoxicated.

On appeal, defendant contends that the accusatory instrument should have been dismissed pursuant to CPL 30.30 (1) (b) because the People had not been ready for trial within 90 days of the commencement of the action, as the time period of June 3, 2009 to October 21, 2009 was chargeable to the People since they failed to show due diligence as required by the exceptional circumstances provision of CPL 30.30 (4) (g). Defendant further contends that the District Court committed reversible error in denying his application to renew his CPL 30.30 motion after defense counsel had informed the court that the police officer witness had, in fact, not been deployed overseas as asserted by the People.

Under the circumstances presented, we find that the District Court properly denied defendant's initial CPL 30.30 motion inasmuch as it was uncontroverted that the police officer witness was on active military duty out of state during the relevant time period, which period was excludable pursuant to the exceptional circumstances provision of CPL 30.30 (4) (g) (see People v Chardon, 83 AD3d 954 [2011]).

Defendant had a valid basis for renewing his CPL 30.30 motion after he presented new facts not offered on his initial motion, which facts were not known to him or the District Court based on the prosecutor's allegedly false representations (see Foley v Roche, 68 AD2d 558, 567-568 [1979]). The court, however, did not commit reversible error in denying defendant's application to renew since whether the police officer witness was unavailable because he had been deployed within the United States or deployed overseas is irrelevant as it was uncontroverted that he was out of state on active military duty and, thus, unavailable during this time period.

We find that defendant's remaining contentions lack merit.

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., and Iannacci, J., concur. Decision Date: March 15, 2013

20130315

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