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People v. Ricart

Supreme Court of New York, First Department

August 1, 2017

The People of the State of New York Respondent,
Domingo Ricart, Defendant-Appellant.

          Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.

          Cyrus R. Vance, Jr., District Attorney, New York (Oliver McDonald of counsel), for respondent.

          Friedman, J.P., Manzanet-Daniels, Moskowitz, Kapnick, Webber, JJ.

         Judgment, Supreme Court, New York County (Ronald A. Zweibel, J. at speedy trial motion; Ruth Pickholz, J. at jury trial and sentencing), rendered October 7, 2014, convicting defendant of attempted murder in the second degree and assault in the first degree, and sentencing him to an aggregate term of 15 years, reversed, on the law, defendant's CPL 30.30 motion granted, and the indictment dismissed.

         The People were required to be ready for trial within 183 days after the commencement of the action. The motion court denied defendant's 30.30 motion, finding that the People were chargeable with 181 days. On appeal, the People concede that they should have been charged with 12 additional days that, if added to the total charged by the court, would require dismissal. The People argue that the judgment should nevertheless be affirmed because the court overcharged them by including periods that should have been excluded.

         The motion court properly determined that the 17 disputed days between August 5, 2013 to September 17, 2013 were chargeable to the People. The motion court also properly determined that 13 days between July 23 and August 5, 2013 were chargeable to the People, as conceded by the People below. When these days are added to those the People concede on appeal, the total exceeds the People's speedy trial time, regardless of the other disputed periods.

         Pursuant to CPL 30.30(4)(g), periods of delay caused by "exceptional circumstances" are excludable from the time charged to the People; the People have the burden of proving the existence of an exceptional circumstance (see People v Zirpola, 57 N.Y.2d 706');">57 N.Y.2d 706 [1982]). CPL 30.30(4)(g)(i) specifically makes excludable a continuance "granted because of the unavailability of evidence material to the [P]eople's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period." While the unavailability of a witness may be an exceptional circumstance within the contemplation of the statute, the People are required to demonstrate that they "attempted with due diligence to make the witness available" (Zirpola, 57 N.Y.2d at 708). Due diligence requires that the People "undertake credible, vigorous activity' to make the witness available" (People v Figaro, 245 A.D.2d 300');">245 A.D.2d 300, 300 [2d Dept 1997], quoting People v Washington, 43 N.Y.2d 772, 774 [1977]).

         As the People concede, the mere fact that a necessary witness plans to go on a vacation does not relieve them of their speedy trial obligation (see People v Boyd, 189 A.D.2d 433, 437 [1st Dept 1993], lv denied 82 N.Y.2d 714');">82 N.Y.2d 714 [1993] ["the absence from the country of a witness... during this popular vacation month [of June] can hardly be recognized as exceptional"]; People v Thomas, 210 A.D.2d 736, 737-738 [3d Dept 1994] ["that the case was adjourned to accommodate the witness's vacation schedule... does not constitute an exceptional circumstance'"]; see also People v Allard, 128 A.D.3d 1081, 1082 [2d Dept 2015], affd 28 N.Y.3d 41 [2016]). "[I]t is the responsibility of the People to be cognizant of the progress of a particular case" (People v Gonzalez, 136 A.D.3d 581, 583 [1st Dept 2016] [internal quotation marks omitted]).

         The court properly determined that the People failed to exercise the necessary due diligence. The People knew that their cooperative witness was planning a vacation to the Dominican Republic, yet they failed to call him or to otherwise secure his presence before he left the country. The prosecutor admitted that although learning of the witness's proposed vacation plans on July 25, 2013, and being specifically asked by the witness to contact him the next day to discuss the trial schedule and his proposed vacation, no one from the District Attorney's office tried to contact the witness until July 30, 2013, at which time they learned he had already left on vacation. Although the witness indicated a willingness to work with the prosecutor on scheduling his vacation and had not yet bought his ticket to the Dominican Republic, the prosecutor never subpoenaed the witness, sought a material witness order, or even communicated with him prior to his departure.

         The People do not seriously dispute the proposition that their witness's vacation plans do not relieve them of their speedy trial obligations. Instead, they argue that because the prosecutor learned "sometime" before the July 30, 2013 trial date that the defense was going to request an adjournment, the July 30, 2013 date was not firm and the People therefore were not required to exercise due diligence to secure the witness's presence. Accepting the People's reasoning, the dissent excludes the entirety of the period from July 30, 2013 through August 22, 2013.

         We reject the People's argument. The People do not dispute that they were aware of the witness's vacation before the adjourn date and that they did nothing to prevent it or to work with the witness to schedule the vacation as he suggested. Under the People's interpretation, they should be permitted to turn a blind eye to a witness's proposed vacation, and then, once the witness has left the country, assert that the time was excludable as an "exceptional circumstance." This is gamesmanship we surely ought not to endorse.

         The People's contention that the defense requested a one-week adjournment on July 30, 2013 due to the unavailability of defense witness is not borne out by the record. The record shows that on that date the prosecutor suggested that the case be adjourned for a week in order to accommodate a defense witness. The defense clarified, however, that it "[did not] have a witness, " and that it "was actually the prosecution's witness who was not available until the next week." Under these circumstances, the seven days from July 30, 2013 through August 5, 2013 were properly chargeable to the People. [1]

         We accordingly find that the prosecutor failed to exercise the requisite due diligence, and that the period between July 23 and August 22, 2013 (i.e., the witness's vacation) was not excludable as an exceptional circumstance.

          All concur except Friedman, J.P. and Webber, J. who dissent in a ...

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