People v. Allard

• Decision Date: 20 October 2016
• Citation: 2016 N.Y. Slip Op. 06853,28 N.Y.3d 41,63 N.E.3d 1140,41 N.Y.S.3d 196
• Parties: The PEOPLE of the State of New York, Appellant, v. Dru ALLARD, Respondent.
• Court: New York Court of Appeals Court of Appeals

28 N.Y.3d 41
63 N.E.3d 1140
41 N.Y.S.3d 196
2016 N.Y. Slip Op. 06853

The PEOPLE of the State of New York, Appellant,
v.
Dru ALLARD, Respondent.

Court of Appeals of New York.

Oct. 20, 2016.

41 N.Y.S.3d 197

Kenneth P. Thompson, District Attorney, Brooklyn (Thomas M. Ross and Leonard Joblove of counsel), for appellant.

Lynn W.L. Fahey, Appellate Advocates, New York City (Joshua M. Levine of counsel), for respondent.

28 N.Y.3d 43

OPINION OF THE COURT

GARCIA, J.

Defendant Dru Allard moved to dismiss the indictment pursuant to CPL 30.30 on the ground that he was denied his statutory right to a speedy trial. Among other things, defendant alleged that the People should be charged with the 97–day period between Supreme Court's dismissal of all felony counts in the indictment, and the People's service of a new indictment. Defendant argued that “[t]he absence of a valid indictment during this period ... directly impaired the People's ability to proceed to trial and as such must be charged.” Defendant's moving papers requested summary dismissal of the indictment or that “a hearing be held to determine the facts.”

In opposition, the People argued, among other things, that 32 of those 97 days were excludable as “delay occasioned by exceptional circumstances” under CPL 30.30(4)(g) because “the complaining witness was on vacation in Egypt and beyond the control of the People,” and the People could not re-present

28 N.Y.3d 44

the case to the grand jury until his return. Defendant did not file reply papers.

Supreme Court denied defendant's motion without a hearing. Defendant appealed and, in response, the People claimed that defendant's CPL 30.30 arguments were unpreserved.

The Appellate Division remitted to Supreme Court for a hearing on the motion, holding the appeal in abeyance in the interim (113 A.D.3d 624, 977 N.Y.S.2d 904 [2d Dept.2014] ). The Court held that, “[c]ontrary to the People's contention, the defendant's claim that the summary denial

41 N.Y.S.3d 198

was error is properly preserved for appellate review” (id. at 625, 977 N.Y.S.2d 904 ). The Appellate Division also determined that defendant was entitled to a hearing pursuant to CPL 210.45(5) because the People failed, as required by the statute, to conclusively refute defendant's motion with “unquestionable documentary proof” (id. at 626, 977 N.Y.S.2d 904 [citation and internal quotation marks omitted] ).

Supreme Court thereafter conducted a hearing on defendant's CPL 30.30 motion. The People presented testimony from the complaining witness—now returned from vacation—and a former Assistant District Attorney previously assigned to defendant's case. Defense counsel cross-examined each witness, eliciting testimony regarding the circumstances surrounding the complainant's travel abroad and the People's efforts to secure his testimony in advance of his departure. After the hearing, both parties filed post-hearing submissions. Defendant argued, among other things, that the People failed to make the requisite showing of “due diligence” required to invoke CPL 30.30(4)(g).

Supreme Court held that “the People failed to conclusively demonstrate that they attempted with due diligence to make the complainant available.” Finding that the 32 days “while the complainant was unavailable to testify should be charged to the People,” Supreme Court concluded that the People exceeded their six-month speedy trial period. The Appellate Division agreed, granting defendant's CPL 30.30 motion to dismiss the indictment (128 A.D.3d 1081, 11 N.Y.S.3d 190 [2d Dept.2015] ). A Judge of this Court granted leave to appeal (26 N.Y.3d 965, 18 N.Y.S.3d 601, 40 N.E.3d 579 [2015] ), and we now affirm.

On appeal, the People do not challenge the merits of defendant's CPL 30.30 claim. Rather, the People contend that the Appellate Division erred in concluding that defendant's claim was “properly preserved for appellate review” (113 A.D.3d at 625, 977 N.Y.S.2d 904 )

28 N.Y.3d 45

because defendant failed to comply with this Court's “well established” procedure for preserving an argument in a CPL 30.30 motion (People v. Beasley, 16 N.Y.3d 289, 292, 921 N.Y.S.2d 178, 946 N.E.2d 166 [2011] ). Pursuant to that procedure, a defendant bears the initial burden of alleging that the People were not ready for trial within the statutorily prescribed time period (People v. Goode, 87 N.Y.2d 1045, 1047, 643 N.Y.S.2d 477, 666 N.E.2d 182 [1996] ). The People, in opposition, “must ordinarily identify the exclusions on which they intend to rely” (People v. Luperon, 85 N.Y.2d 71, 78, 623 N.Y.S.2d 735, 647 N.E.2d 1243 [1995] ). A defendant “preserves challenges to the People's reliance on those exclusions for appellate review by identifying any legal or factual impediments to the use of those exclusions” (Goode, 87 N.Y.2d at 1047, 643 N.Y.S.2d 477, 666 N.E.2d 182 [brackets and internal quotation marks omitted] ). The parties do not dispute...