People v. Delacruz

• Decision Date: 26 January 1993
• Citation: 592 N.Y.S.2d 732,189 A.D.2d 717
• Parties: PEOPLE of the State of New York, Respondent, v. Rolando DELACRUZ, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 732

592 N.Y.S.2d 732

189 A.D.2d 717

PEOPLE of the State of New York, Respondent, v. Rolando DELACRUZ, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Jan. 26, 1993.

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

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Joseph Mazur, J.), rendered July 7, 1989, convicting defendant, after a nonjury trial, of criminal sale and possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years imprisonment, reversed on the law, the sentence is vacated 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 a copy of this Court's 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.

At issue are several periods of delay, whose attribution is determinative of whether defendant was denied a speedy trial. Six hundred sixty-seven days elapsed from defendant's arraignment on the accusatory instrument in August 1987 until commencement of trial in June 1989, of which 210 are indisputably excludable under CPL 30.30(4)(a), (b) and (f). Of the remaining 457 days, 302 are in dispute. Sixty-four of those 302 days comprised three periods of adjournment (May 16 to June 1 and September 15 to October 9, 1988, and March 3 to 24, 1989) for which the record neither identifies the requesting party nor reveals the reason for the requested delay. If these 64 days were crucial to the speedy trial determination, defendant would be entitled to a hearing on the issue (People v. Santos, 68 N.Y.2d 859, 508 N.Y.S.2d 411, 501 N.E.2d 19), notwithstanding the absence of any indication that defendant had objected to these adjournments (People v. Liotta, 79 N.Y.2d 841, 580 N.Y.S.2d 184, 588 N.E.2d 82).

The remaining 238 days of delay, between issuance of a bench warrant for defendant's failure to appear in court in September 1987 and vacatur of that warrant upon defendant's return in April 1988, are thus decisive of the speedy trial issue. Unfortunately the standards laid down by the controlling statute are not free from difficulty in proper construction.

CPL 30.30(4)(c) excludes periods of delay resulting from the "absence" of a defendant, which is defined as "whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence." In other words, short of clear indication that the defendant is knowingly seeking to avoid return to court--e.g., evidence of his use of an alias or his flight from the jurisdiction (People v. Brazeau, 162 A.D.2d 979, 980, 557 N.Y.S.2d 205, lv. denied 76 N.Y.2d 891, 561 N.Y.S.2d 553, 562 N.E.2d 878; People v. Shannon, 128 A.D.2d 395, 397, 512 N.Y.S.2d 680)--the only way to determine a defendant's "absence" is by conducting a duly diligent search for him. In 1984, CPL 30.30(4)(c) was amended to provide an alternative for excluding a period of delay attributable to a defendant's absence. Where such absence results from the defendant's escape from custody or failure to return on bail or his own recognizance, and a bench warrant is issued for his return, the period from issuance of the warrant until return is excludable. However, that alternative still requires a showing of conformity with the definition of "absence" (supra )--i.e., (a) the defendant's location unknown and prosecutorial awareness that he is attempting to avoid apprehension/prosecution, or (b) the defendant's location unable to be determined by due diligence. ¹

"Absence" is thus a necessary element under either of the subd. 4(c) alternatives. For some reason, the People failed, in opposing the motion to dismiss, to allege that defendant had been "absent", as required by statute. The question is whether "absence" as defined can be assumed from the issuance of a bench warrant.

The contested 238 days followed issuance of the bench warrant referred to in the 1984 amendment to CPL 30.30(4)(c), and one might surmise that no bench warrant would issue save for a defendant who is already "absent". But absence is a term of art, for which the statute contains its...