People v. Davis

• Decision Date: 20 June 1994
• Citation: 205 A.D.2d 697,613 N.Y.S.2d 668
• Parties: The PEOPLE, etc., Respondent, v. Artel DAVIS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 668

613 N.Y.S.2d 668

205 A.D.2d 697

The PEOPLE, etc., Respondent, v. Artel DAVIS, Appellant.

Supreme Court, Appellate Division Second Department.

June 20, 1994.

Daley & Pollack, New York City (David Seth Michaels, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Richard T. Faughnan, and Joyce Slevin, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, PIZZUTO and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Egitto J.), rendered July 28, 1989, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence. By order of this court dated June 8, 1992, the matter was remitted to the Supreme Court, Kings County, to hear and report on the defendant's speedy trial motion and the appeal was held in abeyance in the interim (People v. Davis, 184 A.D.2d 575, 584 N.Y.S.2d 638).

ORDERED that the judgment is reversed, on the law, the defendant's speedy trial motion is granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

At issue on this appeal are several periods of delay, the attribution of which is determinative of whether the defendant was denied a speedy trial. The People did not declare their readiness for trial until 270 days after the commencement of the action on August 16, 1987, thereby exceeding the six-month deadline by 86 days (see, People v. Davis, supra, at 575, 584 N.Y.S.2d 638). It was, therefore, incumbent on the People to demonstrate that at least 86 days were to be excluded from the speedy trial timetable; this, they failed to do.

Preliminarily, the People acknowledge that they are chargeable with 93 days of delay, from August 16, 1987, to November 17, 1987, including the period from the date of the filing of the indictment to the date of arraignment (see, People v. Correa, 77 N.Y.2d 930, 569 N.Y.S.2d 601, 572 N.E.2d 42). The following seven-day period is excludable as it was the result of an adjournment at the defendant's request (CPL 30.30[4][b]. The remaining 170 day period from November 24, 1987, the date the Supreme Court ordered the issuance of a bench warrant because of the defendant's failure to appear, until May 12, 1988, when the People announced their readiness to proceed, is in dispute.

At the hearing conducted pursuant to this court's order, the following pertinent facts were established both by stipulation and through the testimony of Sergeant Edward Valente of the Brooklyn Warrant Squad. On November 27, 1987, a bench warrant was issued for the defendant's arrest. The Central Warrant Unit (hereinafter CWU) received the warrant on December 3, 1987. Sergeant Valente explained that the CWU performs certain preliminary processing functions prior to assigning the warrant to a particular warrant squad which, in this case, occurred on January 14, 1988.

Sergeant Valente's efforts to locate the defendant commenced on January 25, 1988, when he checked the "dead file", obtained an on-line booking system arrest report, and requested a criminal history from the Bureau of Criminal Investigation. Sergeant Valente also obtained the address and telephone number of the defendant's mother, with whom the defendant allegedly lived. He further discovered that the complainant in the case also lived at the same address as the defendant's mother and allegedly had the same telephone number. Despite being in possession of this information, Valente neither telephoned the defendant's mother nor attempted to confirm whether the defendant resided at that address. On January 26 and February 12, 1988, Sergeant Valente conducted routine checks to determine whether the defendant had been rearrested and the bench warrant executed.

On February 26, 1988, the defendant was arrested in Manhattan on an unrelated matter under the name Artel Gunther. On February 28, he was incarcerated at Rikers Island. On February 29, he appeared in Kings County Criminal Court in connection with his arrest on November 23, 1987, on misdemeanor charges.

On March 1, 1988, Sergeant Valente again checked the court computer and learned that the warrant was still active. He then contacted the Department of Correction and learned that the defendant had been arrested under the name Artel Gunther with the same NYSIS number. The defendant was finally produced in court on May 5, 1988.

In its decision, the hearing court focused solely on the 89-day period from November 27, 1987, the date the bench warrant was issued, to February 26, 1988, the date of the defendant's arrest. The court concluded that since "this warrant was processed in the ordinary and usual way", the People exercised due diligence, especially "in view of the volume of warrants being issued in the city". The court rejected the defendant's claim that the warrant officer's failure to telephone, visit, or write to the defendant's home constituted a lack of due diligence. In the alternative, the court ruled, that since the People had no knowledge of the defendant's whereabouts, they would not be charged with that period of delay. Accordingly, the court denied the defendant's speedy trial motion.

We conclude that only a portion of that 89-day period is excludable, and for reasons different from those enunciated by the hearing court. First, the three days from November 24, 1987, the date the warrant was ordered, to November 27, 1987, the date it was issued, are properly excludable "as reasonable administrative delay inherent in the processing of the warrant" (People v. Marrin, 187 A.D.2d 284, 286, 589 N.Y.S.2d 874). The People, however, seek to extend the "reasonable administrative delay" exclusion to include the six-day period from November 27, 1987, the date the warrant was issued, to December 3, 1987, when the CWU received the warrant, and again, to the 42-day period from December 3, 1987, to January 14, 1988, when the Brooklyn Warrant Squad received the warrant from the CWU. In the absence of any detailed testimony as to the reasonableness of these delays, however, we conclude that only 35 days of this 48 day period is properly excludable "as reasonable administrative delay inherent in the processing of the warrant" (see, People v. Marrin, supra; People v. Garrett, 171 A.D.2d 153, 575 N.Y.S.2d 93; People v. Lewis, 150 Misc.2d 886, 578 N.Y.S.2d 393). Accordingly, the People are chargeable with the remaining 13 days.

Turning now to the 43-day period from January 14, 1988, when the Brooklyn Warrant Squad received the warrant, until February 26, 1988, when the defendant was arrested on unrelated charges, the People argue that they are entitled to an exclusion because the defendant's location was unknown and he was attempting to avoid prosecution, and, in the alternative, that they exercised due diligence in their efforts to locate the defendant. The People are wrong on both points.

In People v. Bolden, 81 N.Y.2d 146, 597 N.Y.S.2d 270, 613 N.E.2d 145, the Court of Appeals clarified the effect of the 1984 amendment to CPL 30.30(4)(c) regarding the People's duty to announce readiness in cases where the defendant is absent or unavailable, ruling that "prosecutorial diligence in locating the defendant and/or securing his presence must be shown in order to invoke the exclusion for periods when the defendant was 'absent' or 'unavailable' and a bench warrant for his apprehension was outstanding" (People v. Bolden, supra, at 155, 597 N.Y.S.2d 270, 613 N.E.2d 145). The court noted, however, that where the People endeavor to show that "defendant's location [wa]s unknown and he [wa]s attempting to avoid apprehension or prosecution", they would not need to show due diligence "under the literal terms of the statute" (People v. Bolden, supra, at 155, 597 N.Y.S.2d 270, 613 N.E.2d 145).

The People's argument that they were not required to show due diligence as the defendant was attempting to avoid prosecution is unpersuasive in view of their failure to establish that the defendant's location was unknown. We reject outright their claim that they were under no obligation to check the defendant's last known address, at which, notably, the defendant claims to have been residing. In order to avail themselves of this exclusion, the People must expend the minimal effort of checking the defendant's last known address, in the absence of any information that he was not there, e.g., that he fled the jurisdiction (see, People v. Quiles, 176 A.D.2d 164, 574 N.Y.S.2d 188; see, also, People v. Delacruz, 189 A.D.2d 717, 592 N.Y.S.2d 732; People v. Jackson, 142 A.D.2d 597, 530 N.Y.S.2d 40; but see, People v. Neal, 160 Misc.2d 173, 607 N.Y.S.2d 866).

Nor may the People successfully invoke the exclusion of CPL 30.30(4)(c) on the ground that they exercised due diligence. By sporadically conducting various computer checks while failing to check the defendant's last known address, the investigating officer did not "exhaust all reasonable investigative leads" as to the defendant's whereabouts (People v. Marrin, supra; see, People v. Barrasso, 193 A.D.2d 448, 597 N.Y.S.2d 681; People v. Quiles, supra; People v. Peterson, 115 A.D.2d 497, 496 N.Y.S.2d 231).

We further note that the hearing court's consideration of the due diligence question in light of the "volume of warrants being issued in the city" is, as the Bolden Court observed, inappropriate, since the Legislature did not "contemplate that our law enforcement authorities would be relieved of their obligation to attempt to enforce judicially issued process because of the large number of outstanding bench warrants on the limited chance of success" (People v. Bolden, supra, 81 N.Y.2d at 154, 597 N.Y.S.2d 270, ...