PEOPLE v. HICKS (2025)

Order, Supreme Court, Bronx County (Naita A. Semaj, J.), entered on or about May 9, 2023, which granted the People's motion for reargument of defendant's CPL 30.30 motion to dismiss the indictment, and upon reargument, adhered to a prior order, same court and Justice, entered on or about March 7, 2023, which granted defendant's motion, unanimously reversed, on the law and on the facts, defendant's motion denied, the indictment reinstated, and the matter remitted to Supreme Court for further proceedings.  Appeal from order, entered on or about March 7, 2023, unanimously dismissed as superseded by the appeal taken from the order entered on or about May 9, 2023.

The court should have denied defendant's CPL 30.30 motion to dismiss the indictment.  The 39–day period during which a “necessary police witness” was “medically unavailable” should have been excluded as an “exceptional circumstance” under CPL 30.30(4)(g) (People v. Onikosi, 140 A.D.3d 516, 517, 34 N.Y.S.3d 18 [1st Dept. 2016], lv denied 28 N.Y.3d 1074, 47 N.Y.S.3d 233, 69 N.E.3d 1029 [2016];  see also People v. Hernandez, 268 A.D.2d 344, 344–345, 702 N.Y.S.2d 247 [1st Dept. 2000], lv denied 95 N.Y.2d 853, 714 N.Y.S.2d 4, 736 N.E.2d 865 [2000]).  The People established that the officer's broken ankle constituted a “sufficiently restricting injury,” given that the officer suffered from limited mobility, had not been cleared to testify by the police surgeon, and was unable to work in even a limited capacity during the relevant period (see People v. McLeod, 281 A.D.2d 325, 327, 722 N.Y.S.2d 507 [1st Dept. 2001], lv denied 96 N.Y.2d 899, 730 N.Y.S.2d 796, 756 N.E.2d 84 [2001] [internal quotation marks omitted]).  The People's representations, supported by documentation of the officer's medical leave, “constituted sufficient proof of [his] medical unavailability and the People [are] not obligated to prove it by other means” (People v. Bailey, 221 A.D.2d 296, 296, 634 N.Y.S.2d 105 [1st Dept. 1995];  see also Hernandez, 268 A.D.2d at 344–345, 702 N.Y.S.2d 247).  Contrary to defendant's contentions, “[t]he People were not required to show that the witness was completely immobilized or totally incapacitated, or that they had made extraordinary efforts to secure his presence” (People v. Alcequier, 15 A.D.3d 162, 163, 788 N.Y.S.2d 389 [1st Dept. 2005], lv denied 4 N.Y.3d 851, 797 N.Y.S.2d 425, 830 N.E.2d 324 [2005];  see also People v. Celestino, 201 A.D.2d 91, 95, 615 N.Y.S.2d 346 [1st Dept. 1994]).

We also find that the 10–day period following “[d]efense counsel's assertion ․ that he would be filing a CPL 30.30 motion prompted an adjournment for defense motions that was properly excludable” (People v. Ali, 209 A.D.2d at 227, 618 N.Y.S.2d 640;  see also CPL 30.30[4][a], [b]), “irrespective” of the People's readiness on that date (People v. Delacruz, 241 A.D.2d 328, 328, 660 N.Y.S.2d 7 [1st Dept. 1997], lv denied 90 N.Y.2d 939, 664 N.Y.S.2d 757, 687 N.E.2d 654 [1997];  see also People v. Roebuck, 279 A.D.2d 350, 351, 719 N.Y.S.2d 82 [1st Dept. 2001], lv denied 96 N.Y.2d 805, 726 N.Y.S.2d 384, 750 N.E.2d 86 [2001]).

Defendant's arguments concerning the period of delay from February 10 to February 15, 2023 are unpreserved (see People v. Beasley, 16 N.Y.3d 289, 292–293, 921 N.Y.S.2d 178, 946 N.E.2d 166 [2011];  People v. Humphrey, 231 A.D.3d 413, 413, 217 N.Y.S.3d 545 [1st Dept. 2024]), and we decline to review them in the interest of justice.  As an alternative holding, we find that this time period was properly excluded as motion practice under CPL 30.30(4)(a) (see People v. Ali, 209 A.D.2d 227, 227, 618 N.Y.S.2d 640 [1st Dept. 1994], lv denied 85 N.Y.2d 905, 627 N.Y.S.2d 328, 650 N.E.2d 1330 [1995]).  Defendant has not established “that the People's response to the speedy trial motion was so dilatory or unsatisfactory that any further time should have been charged” (People v. Davila, 257 A.D.2d 485, 486, 685 N.Y.S.2d 5 [1st Dept. 1999], lv denied 93 N.Y.2d 968, 695 N.Y.S.2d 54, 716 N.E.2d 1099 [1999];  see also People v. Johnson, 291 A.D.2d 346, 737 N.Y.S.2d 858 [1st Dept. 2002]).