People v. Boyd

• Decision Date: 15 April 1993
• Citation: 189 A.D.2d 433,596 N.Y.S.2d 760
• Parties: The PEOPLE of the State of New York, Respondent, v. Markeith BOYD, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 760

596 N.Y.S.2d 760

189 A.D.2d 433

The PEOPLE of the State of New York, Respondent, v. Markeith BOYD, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

April 15, 1993.

Tamara Detloff, New York City, of counsel (E. Joshua Rosenkranz, attorney), for defendant-appellant.

Susan H. Odessky, New York City, of counsel (Joan P. Sullivan and Hilary Hassler, with her on the brief, Robert M. Morgenthau, Dist. Atty., attorney), for respondent.

Before WALLACH, J.P., and KUPFERMAN, ASCH and RUBIN, JJ.

RUBIN, Justice.

On this appeal, defendant challenges his conviction, under indictment number 12204/89, for the gunpoint robbery of an individual on a midtown street. Prior to the trial of this action, defendant was tried and convicted for a series of unrelated robberies of luggage stores under two separate indictments, numbers 10080/89 and 10080A/89, which were consolidated for trial (the "consolidated indictments"). On appeal, defendant asserts that his conviction under indictment number 12204/89 violated his right to a speedy trial (CPL 30.30); that the destruction of certain scratch notes, including an identification given by the complaining witness, violated his rights pursuant to People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64; and that the introduction of testimony of a previous photographic identification by the complaining witness constitutes reversible prejudicial error.

At trial, testimony was received from the victim and from Detective Mordechai Dzikansky, who investigated the robbery. Defendant, who did not present a case, appeared pro se, assisted by a legal advisor.

FACTS

The complaining witness testified that, on August 22, 1989 at 4:20 a.m., he was on his way to an early breakfast at a midtown Manhattan restaurant, walking south on Park Avenue in the vicinity of 58th Street. The weather was clear and the avenue well illuminated by street lights and the lights of a nearby bank. Defendant, wearing a yellow T-shirt and dark pants, approached from the vicinity of 57th Street, walking directly towards the victim. As the two men met, defendant pulled out a chrome-plated .38 calibre snub-nosed revolver, poked it in the victim's solar plexus and pushed him up against the wall of the bank. After threatening the victim, defendant rifled through his pockets, dropping any papers and documents on the sidewalk and retaining $900 in cash. Defendant then demanded a wallet, to which the victim responded that he did not carry one. Defendant continued to search for a wallet and, failing to locate one, told the victim to turn and walk away without looking back. Complainant complied and turned to look back only after reaching the other end of the block. Seeing no one, he called the police.

The responding officers obtained a description of the assailant as they drove the victim around the area in an unsuccessful attempt to locate defendant. Later that morning, the officers brought complainant to view a suspect at a show-up, but he stated with certainty that the man being detained was not defendant.

Subsequently, complainant gave a description of defendant to Detective Dzikansky who had been assigned to investigate the case. The detective testified that complainant picked defendant's photograph out of an array of six photographs and identified him at a line-up conducted several weeks later.

I. SPEEDY TRIAL

The People concede that, in deciding the speedy trial motion, Supreme Court properly charged the prosecution with 108 days towards the six-month statutory limit. At issue are five time periods, three of which are referable to proceedings involving the unrelated consolidated indictments, which Supreme Court excluded from the time chargeable to the People.

On February 6, 1990, Supreme Court issued a decision on defendant's omnibus motion in this case and adjourned the proceedings to March 6, 1990 (28 days) to enable the prosecution to consolidate the indictments arising out of the luggage store robberies. Supreme Court excluded this period as time consumed by motion practice (CPL 30.30[4][a]. The People contend that a discovery motion previously filed by defendant under indictment number 10080A/89 sought, in addition to discovery, dismissal of all three indictments on the ground defendant was deprived of the right to testify before the Grand Jury. Defendant, however, denies that his motion related to the instant indictment and contends that, during this time period, no motion was pending in this case until a discovery motion was filed on February 27, 1990.

On a speedy trial motion, if the papers contain sworn allegations of an unexcused delay exceeding the time limit imposed by CPL 30.30, it is the prosecution's burden to demonstrate that a particular period of time should be excluded from the calculation of the statutory limit (People v. Santos, 68 N.Y.2d 859, 861, 508 N.Y.S.2d 411, 501 N.E.2d 19; People v. Berkowitz, 50 N.Y.2d 333, 349, 428 N.Y.S.2d 927, 406 N.E.2d 783). The People fail to substantiate the claim that the motion filed in regard to one of the consolidated indictments had any bearing on the indictment subject to appeal, making only a reference to the minutes of April 3, 1990 which post-date the adjournment and are not included in the record. Therefore, this period of time is chargeable to the prosecution.

On March 6, 1990, the People submitted a response to defendant's February 27th discovery motion, filed in regard to the consolidated indictments. The court adjourned all proceedings to March 20th for decision on the motion and for trial of the instant criminal action. The motion contained, inter alia, a belated demand to testify before the Grand Jury with respect to the indictment in this case (Number 12204/89). While defendant characterizes his attempt to obtain re-presentment of this indictment to the Grand Jury as "halfhearted", it is not the ardor of his application but its existence which is dispositive. Whether or not this adjournment may be said to be on consent, as Supreme Court found, it is excludable as time consumed in motion practice involving this action (CPL 30.30[4][a].

Trial of the consolidated indictments resulted in a verdict of guilty, returned on May 3, 1990, upon which the court adjourned the case for sentencing on May 29th. Defendant contends that this period of time is not excludable, as Supreme Court determined, as time consumed in "trial of other charges" (CPL 30.30[4][a]. This court does not agree. A criminal action culminates in sentencing (CPL 1.20[16], and all proceedings up until the imposition of sentence are excludable from the statutory period (People v. Bryant, 12 N.Y.2d 719, 233 N.Y.S.2d 771, 186 N.E.2d 127).

On May 29th, the prosecution informed the court that necessary witnesses would be out of the country for two weeks and that the prosecutor would be out of the country for an additional two weeks. On appeal, the People concede that the resulting adjournment to July 2, 1990 (34 days) was not on consent, as Supreme Court ruled. The People nevertheless contend that the adjournment was warranted by "exceptional circumstances" pursuant to CPL 30.30(4)(g). However, the absence from the country of a witness, or for that matter the prosecutor, during this popular vacation month can hardly be regarded as exceptional (People v. Jones, 68 N.Y.2d 717, 718, 506 N.Y.S.2d 315, 497 N.E.2d 682). 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" (People v. Zirpola, 57 N.Y.2d 706, 708, 454 N.Y.S.2d 702, 440 N.E.2d 787). As no reason for the unavailability of the witness was stated, the prosecution provided the court with no basis upon which to conduct a hearing to determine whether or not the circumstances were exceptional.

Finally, defendant contends that the time period preceding submission of his CPL 30.30 motion on August 7, 1990 (32 days) should not have been excluded because his consent to the adjournment was not expressed on the record (People v. Liotta, 79 N.Y.2d 841, 580 N.Y.S.2d 184, 588 N.E.2d 82). However, in his reply dated September 28, 1990, submitted in response to the People's answer to this motion, defendant stated: "On July 2nd, the People contend their 'readiness' by the 5th of July. Defense Counsel asked for August 7th. Judge Weissberg stated on the official Court record that from July 2nd to July 5th is chargeable to the People and from July 6th to August 7th is chargeable to the defense."

The general rule, as recently stated by the Court of Appeals in People v. Cortes, 80 N.Y.2d 201, 215, 590 N.Y.S.2d 9, 604 N.E.2d 71, is that "the defendant ordinarily has the burden of showing that any postreadiness adjournments occurred under circumstances that should be charged to the People" (80 N.Y.2d at 215-216, 590 N.Y.S.2d 9, 604 N.E.2d 71, citing People v. Anderson, 66 N.Y.2d 529, 541, 498 N.Y.S.2d 119, 488 N.E.2d 1231). However, "it is the People's burden to ensure, in the first instance, that the record of the proceedings at which the adjournment was actually granted is sufficiently clear to enable the court considering the subsequent CPL 30.30 motion to make an informed decision as to whether the People should be charged" ( supra, at 215-216, 590 N.Y.S.2d 9, 604 N.E.2d 71, citing, People v. Liotta, supra, at 843, 580 N.Y.S.2d 184, 588 N.E.2d 82, and People v. Berkowitz, supra ). While it is clear, in this instance, that no record was made, defendant affirmed in his papers that the adjournment was obtained at the request of "Defense Counsel". Thus, the matter was not in dispute on the motion, and Supreme Court properly charged this time to defendant. Having conceded the issue below by virtue of his admission, defendant cannot raise it for the first time on appeal (CPL 470.05[2]...