PEOPLE v. PENIL (2007)

Defendant is charged in the captioned indictment with Criminal Possession of a Weapon in the Third Degree and related offenses.   On June 14, 2007 defendant filed a written motion to dismiss the indictment pursuant to CPL § 30.30 on the ground that he had been denied the right to a speedy trial.   The People opposed the motion to dismiss in their response filed on July 3, 2007.   Defense counsel stated he would not submit a reply.   The court bases its decision on the submissions by the parties, the court's own notes, relevant stenographic minutes, and the applicable law.

 For speedy trial purposes, this matter is deemed to have commenced on March 29, 2006 upon the filing of the criminal court complaint.  People v. Lomax, 50 N.Y.2d 351, 428 N.Y.S.2d 937, 406 N.E.2d 793 (1980).   Pursuant to CPL § 30.30(1)(a), the People were required to answer ready for trial on the indictment within six months of the commencement of the criminal action which, in this, case totals 184 days.   Defendant's motion alleges that the People have exceeded the six-month statutory period in which to be ready for trial.   Accordingly, the People have the burden of demonstrating sufficient periods of excludable time in order to establish readiness within the six-month statutory time.  People v. Berkowitz, 50 N.Y.2d 333, 428 N.Y.S.2d 927, 406 N.E.2d 783 (1980).   Once the prosecution has responded to the defense motion by identifying the exclusions on which it intends to rely, the burden then shifts to the defense to identify any legal or factual impediments to the use of those exclusions.  People v. Luperon, 85 N.Y.2d 71, 78, 623 N.Y.S.2d 735, 647 N.E.2d 1243 (1995).

March 29, 2006 to March 31, 2006

This action is deemed to have commenced on March 29, 2006 with the filing of the criminal court complaint.   On March 30, 2006, defendant was arraigned while in the hospital and indicated his desire to testify before the Grand Jury. The case was then adjourned to March 31, 2006 in Part A, the CPL § 180.80 date.   The People are charged with 2 days.

March 31, 2006 to May 8, 2006

On March 31, 2006, there had been no Grand Jury action and defendant was released from custody pursuant to CPL § 180.80 and the case was adjourned to May 8, 2006 in Part A for Grand Jury action.   The People are charged with 38 days.

May 8, 2006 to June 5, 2006

 On May 8, 2006, defendant did not appear in Part A and the court stayed a bench warrant.   The matter was adjourned to June 5, 2006.   This period is excludable.  People v. Benjamin, 292 A.D.2d 191, 739 N.Y.S.2d 667 (1st Dept.2002).

June 5, 2006 to August 2, 2006

On June 5, 2006, defendant again did not appear and the court stayed a bench warrant.   The case was adjourned to August 2, 2006 in Part T3. This period is excludable.  People v. Benjamin, supra.

August 2, 2006 to May 16, 2007

 On August 2, 2006, defendant, who was at liberty, did not appear in court and the court issued a bench warrant.   Subsequently, unbeknownst to the court or the People, defendant was picked up on a parole violation on September 15, 2006, after which he was incarcerated in Malone, New York, where he remained continuously until May 16, 2007, when he was produced before the court.   On April 26, 2007, defense counsel notified the People for the first time that his client was incarcerated in a New York State facility in Malone, New York. The People then produced defendant in Part T3 on May 16, 2007, at which time defendant was arraigned on the indictment and the People stated ready for trial.¹

CPL § 30.30(4)(c)(ii) provides that the following period is to be excluded in computing the time in which the People are required to be ready for trial:

where the defendant has either escaped from custody or has failed to appear when required after having previously been released on bail or on his own recognizance, and provided the defendant is not in custody on another matter, the period extending from the day the court issues a bench warrant pursuant to section 530.70 because of the defendant's failure to appear in court when required, to the day the defendant subsequently appears in court pursuant to a bench warrant or voluntarily or otherwise.

While defendant was not in custody on the parole violation on August 2, 2006, when the bench warrant was issued, defendant appears to contend that his subsequent incarceration prevents the People from relying on CPL § 30.30(4)(c)(ii) to exclude any time during which the warrant was outstanding.   The statute's qualification “provided the defendant is not in custody on another matter” clearly means that the exclusion is applicable provided defendant was not in custody on another matter on the date he was required to appear and the bench warrant was issued.   See Preiser, Practice Commentaries, McKinney's Consol. Laws, Book 11A, CPL § 30.30, p. 217.   Therefore, the period during which defendant was at liberty and was the subject of a bench warrant issued based on his failure to appear in court when required is excludable pursuant to CPL § 30.30(4)(c)(ii) and his subsequent incarceration does not affect the exclusion of that earlier period.   See, People v. Howard, 182 Misc.2d 549, 699 N.Y.S.2d 650 (Sup.Ct. N.Y. Co.1999).   Accordingly, the period from August 2, 2006, to defendant's subsequent incarceration on or about September 15, 2006, is excludable time.  CPL § 30.30(4)(c)(ii).

Defendant argues that the People should be charged with the period during which he was incarcerated in Malone, New York until he was produced before the court on the bench warrant and the People answered ready for trial.   The issue is whether the exclusion of the bench warrant period pursuant to CPL § 30.30(4)(c)(ii) continues while defendant was incarcerated on the parole violation.   That issue appears to have been addressed by only one appellate court, whose decision is discussed infra, and the lower court decisions on the issue are inconsistent.²  Prior to the 1996 amendment of CPL § 30.30(4)(c), the People could only exclude the period during which a defendant was the subject of a bench warrant if the defendant was “absent” or “unavailable.”   In People v. Bolden, 81 N.Y.2d 146, 597 N.Y.S.2d 270, 613 N.E.2d 145 (1993), the court held that former CPL § 30.30(4)(c) required due diligence to execute a bench warrant against a defendant because the statute provided that “a defendant must be considered absent when his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence.”   Former CPL § 30.30(4)(c), emphasis added.   Thereafter, in 1996, the legislature amended CPL § 30.30(4)(c), separating the exclusion for an “absent” or “unavailable” defendant from the exclusion for a defendant who is the subject of a bench warrant for having failed to appear when required.   It is widely acknowledged that the amendment was intended to eliminate the previously required statutory obligation to use due diligence to locate a defendant who had voluntarily failed to appear in court and for whom a bench warrant had been issued.   See discussion of the 1996 amendment in People v. Howard, supra.

Therefore, it appears that the legislature clearly intended that the exclusion of time for those defendants statutorily defined by CPL § 30.30(4)(c)(i) as being “absent” or “unavailable” is to be read separately from the exclusion of time for those defendants for whom a bench warrant has been issued as provided in CPL § 30.30(4)(c)(ii).   Accordingly, the plain language of the subsection CPL § 30.30(4)(c)(ii) is that, if the defendant is not in custody on the date required to appear and a bench warrant is issued, the exclusion of time continues until defendant is returned on the warrant.   If the qualification to that subsection, “provided the defendant is not in custody on another matter”, means that the exclusion of time ends when defendant is subsequently incarcerated on another matter, the subsection would have further set forth the obligations of the People to locate and produce the defendant.   The court should not look to other subsections of CPL § 30.30(4) to construe qualifications or limitations to CPL § 30.30(4)(c)(ii) where the statute does not set forth such a limitation or qualification.

 The single Appellate Division decision addressing the issue presented here is People v. Mapp, 308 A.D.2d 463, 764 N.Y.S.2d 194 (2nd Dept.2003).   If that decision were on point this court would be obligated to follow it in the absence of controlling authority in this Department.   In People v. Mapp, supra, the Court acknowledged that the People were not required to exercise due diligence, presumably to locate the defendant, after the issuance of the bench warrant “even after his subsequent arrest and incarceration upon an unrelated matter ․” People v. Mapp, at 463, 764 N.Y.S.2d 194.   Yet that Court found that once members of the New York City Police Department interviewed the defendant, knowledge of the defendant's location was imputed to the District Attorney.   That Court then found that under those circumstances, the District Attorney should be charged with failing “to obtain the defendant's presence for trial.”  People v. Mapp, supra, at 464, 764 N.Y.S.2d 194.   That case is distinguishable for two reasons.   One, the imputed knowledge, whether properly applied or not,³ was based on the actual knowledge of defendant's incarceration by the Police Department that was charged with executing the outstanding bench warrant.   Second, that Court charged the People with failing to produce the defendant, not failing to locate him.   In this case defendant was in the custody of the New York State Department of Corrections on a parole violation.   Accordingly, People v. Mapp, supra, is not controlling authority in this case. Therefore, this court holds that, once the bench warrant exclusion properly takes effect, the time is excluded until defendant is returned on the warrant.⁴  Accordingly, the period from September 15, 2006 to May 16, 2007 is excludable.

May 16, 2007 to May 30, 2007

 On May 16, 2007, defendant was produced in court, the bench warrant was vacated and defendant was arraigned on the indictment.   The People stated ready for trial.   The case was adjourned to May 30, 2007 for possible disposition.   This period is excludable.  CPL § 30.30(4)(b).

May 30, 2007 to present

 On May 30, 2007, defense counsel indicated his intention to file the instant speedy trial motion.   The case was subsequently adjourned for motion practice and the court's decision on defendant's motion.   This period is excludable.  CPL § 30.30(4)(a).

In sum, the court finds that the People have amassed 40 days of pre-readiness time and 0 days of post-readiness time.   Accordingly, defendant's motion to dismiss the indictment is denied.

This opinion constitutes the decision and order of the court.

FOOTNOTES

1.   The People contend that they answered ready for trial on August 2, 2006, when the bench warrant was issued.   The court has obtained the minutes of that proceeding and they reflect that the People did not state their readiness for trial on that date.

2.   In People v. Howard, supra, the court reached the same conclusion as does this court.   In People v. Nueble, 3/20/2000, N.Y.L.J., p. 29, col. 6, Crim. Ct., Kings Co., the court applied Court of Appeals holdings interpreting the pre-1996 version of CPL § 30.30(4)(c) concerning whether or not the People were required to use due diligence to locate bench warrant defendants to a post-1996 case.   In People v. Johnson, 4/12/99, N.Y.L.J., p. 29, col. 6, Sup.Ct. Queens Co., the court applied CPL § 30.30(4)(e) to a bench warrant defendant, apparently concluding that subdivision (4)(e) limited the exclusion of warrant time otherwise excluded under CPL § 30.30(4)(c)(ii).

3.   In People v. Sigismundi, 89 N.Y.2d 587, 657 N.Y.S.2d 381, 679 N.E.2d 620 (1997), the Court held that where the statute deemed a defendant to be absent who's location was “unknown” and who was attempting to avoid apprehension, due diligence was not required to execute the bench warrant.   The Court further held that, under those circumstances the doctrine of “imputed knowledge” of defendant's location based on defendant's custody by other law enforcement authorities was not applicable.   It would appear that the legislature sought to distinguish the absent defendant from the bench warrant defendant by amending CPL § 30.30(4)(c) in 1996 to separate the provisions relating to those two categories of defendants.   Accordingly, imputed knowledge, a derivative of due diligence, would be inapplicable to the bench warrant defendant, as due diligence is not required to execute a bench warrant against a defendant under current CPL § 30.30(4)(c)(ii).

4.   This court acknowledges that CPL § 30.30(4)(c)(ii), which it holds should be read separately from the other subsections of CPL § 30.30(4)(c), does not address what action is required where the District Attorney's Office or the Police Department of that District Attorney's jurisdiction has actual knowledge of the defendant's incarceration after the issuance of a bench warrant.   Yet, every court that has confronted such a situation has found that even if the People are not obligated to use due diligence to find the defendant, they must use due diligence to return the defendant on the warrant if defendant's location is known.   See People v. Anderson, 66 N.Y.2d 529, 498 N.Y.S.2d 119, 488 N.E.2d 1231 (1985);  People v. Mapp, 308 A.D.2d 463, 764 N.Y.S.2d 194 (2nd Dept.2003);  People v. Howard, supra;  People v. Delacruz, 184 Misc.2d 653, 711 N.Y.S.2d 674 (Sup.Ct. N.Y. Co.2000).

PETER J. BENITEZ, J.