People v. Daniels

• Citation: 217 A.D.2d 448,630 N.Y.S.2d 5
• Parties: The PEOPLE of the State of New York, Respondent, v. Series DANIELS, Defendant-Appellant.
• Decision Date: 13 July 1995
• Court: New York Supreme Court Appellate Division

Page 5

630 N.Y.S.2d 5

217 A.D.2d 448

The PEOPLE of the State of New York, Respondent, v. Series DANIELS, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

July 13, 1995.

H.L. Perzan, for respondent.

J.A. Zayas, for defendant-appellant.

Before ROSENBERGER, J.P., and RUBIN, KUPFERMAN, NARDELLI and TOM, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Franklin Weissberg, J.), rendered December 4, 1990, convicting appellant, after jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to an indeterminate term of imprisonment of from 5 to 10 years, reversed, on the law, and the indictment dismissed. The matter is remitted to the trial court for the purpose of entering an order in favor of the accused pursuant to CPL 160.50, not less than 30 days after service of this order upon the respondent, with leave during this 30 day period to respondent to move and seek any further stay of the implementation of CPL 160.50 as in the interest of justice is required.

Appellant was convicted of a robbery that took place just before 1:00 in the early morning of May 31, 1989. As the victim was climbing the stairway leading up from the subway station at 50th Street and Eighth Avenue, he was accosted by appellant, who ripped off his eyeglasses while a co-defendant, Carl Allen, placed the victim in a headlock. The pair were joined in the assault by three other accomplices who rifled the victim's pockets. The five attackers then fled south on Eighth Avenue with the victim's wallet, glasses, watch and pocket diary. Responding to the report of an unrelated crime, Sergeant Vito J. Labella was flagged down by the victim. As they drove around the area in a police van, the victim, using the Sergeant's eyeglasses, saw his assailants from a distance of about 150 feet as they ran across Eighth Avenue on 46th Street towards Broadway. They were apprehended by police in a parking lot where the victim, who remained in the van, identified appellant and Carl Allen by their facial appearance and height and the other three men by their clothing. The victim's belongings were recovered along the path observed to have been taken by the fleeing suspects.

At the Precinct House, the assailants were also identified by Transit Police Sergeant Wayne Healey, who had noticed the five men standing near the top of the stairs of the subway station, along with two women positioned closer to the street, as he drove past Eighth Avenue and 50th Street.

A beeper and a small vinyl bag containing $2500 and a shotgun shell were recovered from appellant. Another Transit Officer, Helmut Ruppi, had observed co-defendant James Daniels, appellant's brother, carrying the bag prior to the arrest. A yellow metal ring was found on co-defendant Tyrone Campbell. Later, at Central Booking, another co-defendant, Phil Jackson, told Officer Ruppi, "that man can't recognize us, he didn't have his glasses on." The victim identified appellant and Carl Allen at trial.

Just prior to trial on June 12, 1990, Tyrone Campbell pled guilty to attempted robbery in the second degree. The remaining co-defendants were convicted jointly with appellant but have not perfected their appeals.

At trial, appellant, Daniels, Jackson and Campbell maintained that they had spent the day together. Earlier they had gone to a "Starter" outlet in New Haven, Connecticut where they purchased, with cash, $1130 worth of clothing for sale in their Queens clothing store called "Serious Threads". A defense witness testified that the store was kept well stocked with merchandise. In the late evening, appellant and his companions went to a movie theater in Queens but, finding it closed, they returned to the Times Square area, where the theaters remain open later. They parked their car on 46th Street between 7th and 8th Avenues and visited some of the area's pornographic establishments. They were walking back to their car when they were arrested.

In rebuttal, the People presented testimony from Officer James Jenkins of the 105th Precinct in Queens. He served as the Community Patrol Officer for the area where the clothing store, Serious Threads, was located. He stated that he had visited the store on at least fifty occasions and walked by over a hundred times between September 1988 and June 1989. He never observed more than six sweatsuits on the premises, nor any customers, cash registers, clothing racks or inventory in the storeroom. He did, however, see a police scanner set to the frequency of the 105th Precinct on the back wall. He testified that, on October 6, 1989, about four months after appellant was alleged to have committed the robbery, large sums of money were discovered in the store by Officer Jenkins and members of the Fire, Sanitation and Building Departments. The store closed that month.

On this appeal, appellant contends, inter alia, that he did not receive a fair trial and that trial did not commence within the six months mandated by CPL 30.30. In a pre-trial motion, defendant stated merely that more than one year had elapsed since the date the felony complaint was filed and that the indictment ought therefore to be dismissed. Although counsel's moving affidavit requested a hearing, the motion was decided on papers. The People submitted an affidavit in opposition responding to the merits of defendant's motion and Supreme Court, in a written decision, determined that the People were to be charged with only 85 days' delay, well within the 183-day statutory period. On appeal, the People concede that 105 days are attributable to their unreadiness for trial, while appellant maintains that the total is 222 days.

Appellant and his four co-defendants were charged with robbery in the second degree under indictment 6777-89, and the complaint was filed on June 2, 1989. Grand Jury presentations were postponed on June 6 to permit the defendants to testify on June 8 and 9. It is not disputed that this three-day period is excludable from the computation to determine whether appellant received his statutory right to a speedy trial. However, the People argued, and Supreme Court agreed, that the three-day period from June 9 to 12, during which the Grand Jury heard "additional testimony regarding matters which arose from defendant['s] testimony", should likewise be excluded.

A delay in presentation of a case to a Grand Jury occasioned by a defendant's desire to testify is excludable as an adjournment granted at his request (CPL 30.30[4][b]; People v. Muhanimac, 181 A.D.2d 464, 465, 581 N.Y.S.2d 301, lv. denied 79 N.Y.2d 1052, 584 N.Y.S.2d 1019, 596 N.E.2d 417; People v. Jason, 158 A.D.2d 337, 338, 551 N.Y.S.2d 25, lv. denied 76 N.Y.2d 737, 558 N.Y.S.2d 899, 557 N.E.2d 1195). However, the time taken up by Grand Jury proceedings is generally chargeable to the prosecution, unless excludable on statutory grounds such as the unavailability of material evidence or exceptional circumstances (see, People v. Fluellen, 160 A.D.2d 219, 221-222, 553 N.Y.S.2d 670). It is uncontested that the Grand Jury testimony of all defendants in this case concluded on June 9 and, in the absence of exceptional circumstances, further time consumed by the Grand Jury proceedings is includable as time charged to the People (People v. Waring, 206 A.D.2d 329, 331, 615 N.Y.S.2d 21, lv. denied 84 N.Y.2d 940, 621 N.Y.S.2d 537, 645 N.E.2d 1237).

The next contested period of delay concerns an adjournment requested by the People on October 31 until November 13, 1989. The court, however, adjourned the case to November 28 "on its own motion" and applied only the period of time actually requested by the prosecution to the calculation of the statutory time limit. As this Court observed in People v. Bissereth, 194 A.D.2d 317, 318, 598 N.Y.S.2d 781, lv. denied 82 N.Y.2d 714, 602 N.Y.S.2d 811, 622 N.E.2d 312, 82 N.Y.2d 804, 604 N.Y.S.2d 940, 624 N.E.2d 1035, the operative fact is that the adjournment was granted at the behest of the People and not that the court, in the exercise of discretion, adjourned the matter to a later date. As the Court of Appeals noted in People v. Smith, 82 N.Y.2d 676, 678, 601 N.Y.S.2d 466, 619 N.E.2d 403, "Adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay * * * Because the actual dates were set either by the court or the prosecution, no justification exists for excluding the additional adjournment time required to accommodate defense counsel's schedule." Thus, the entire period of time is includable.

On the adjourned date, the record indicates that defense counsel had undergone "major surgery", that his office had been contacted and that his secretary "suggested that either January 10th or 17th would be appropriate". The court thereupon put the matter over until January 23, 1990 noting, "That will give him plenty of time to recover." Appellant contends that the time after January 17 is chargeable to the People. However, the same reasoning applies to the defense as to the prosecution. The adjournment was granted for the convenience of the defense due to the unavailability of defense counsel. In the absence of a definitive communication from counsel, the court can hardly be faulted for exercising its discretion to adjourn trial to a date when it could be reasonably assured that he would again be able to attend court. Under the circumstances, the adjournment cannot be regarded as an abuse of discretion, and this time period was properly excluded.

On the next calendar date, January 23, 1990, the prosecutor answered that the People were not ready to proceed. In their response to the CPL 30.30 motion, the People belatedly sought to excuse their delay, stating that they "were not aware of defense counsel's recovery." As noted in People v. Hamilton, 46 N.Y.2d 932, 933, 415 N.Y.S.2d 208, 388 N.E.2d 345, "It is insufficient, as a matter of law, to inform the...