People v. Foy

• Decision Date: 07 June 1973
• Parties: , 299 N.E.2d 664 The PEOPLE of the State of New York, Respondent, v. Ronald FOY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 245

346 N.Y.S.2d 245

32 N.Y.2d 473, 299 N.E.2d 664

The PEOPLE of the State of New York, Respondent, v. Ronald FOY, Appellant.

Court of Appeals of New York.

June 7, 1973.

Judith Preble and William E. Hellerstein, New York City, for appellant.

Eugene Gold, Dist. Atty. (J. Mitchell Rosenberg, New York City, of counsel), for respondent.

WACHTLER, Judge.

On this appeal the primary issue is whether the trial court abused its discretion in denying the appellant's request for an adjournment in order to secure the attendance of his alibi witnesses. Because of the special circumstances present in this case, we have concluded that the refusal to grant the requested adjournment requires that the conviction be reversed and a new trial granted.

Several days prior to the trial, defense counsel advised the prosecutor that he intended to produce alibi witnesses at the trial. On the first day of trial (Wednesday, Feb. 26, 1969) counsel delivered a short opening statement in which he informed the jury the defendant intended to rely solely on 'the best defense in the world. He wasn't there * * * We expect to introduce testimony by people who will tell you that the defendant was in his apartment'. When the People finally rested on Friday morning (Feb. 28, 1969), defense counsel applied to the court for an adjournment so that he might secure the attendance of Martin Lopez, a friend of the defendant, and Mrs. Anna DeJesus, the superintendent of the building in which the defendant lived, both of whom had agreed to testify that the defendant was in his room at about the time the burglary was committed. Counsel informed the court that Mr. Lopez, a truck driver, had taken the previous day off and had appeared to testify. However when he was unable to do so he informed counsel that he could not afford to stay away from work another day, at which time the attorney issued a subpoena, which had not been honored. Counsel also advised the court that he had attempted to have Mrs. DeJesus served but had been unable to reach her.

The application was denied by the Trial Judge who noted that he had been assigned to preside in Staten Island on the following Monday, that he had advised counsel of this prior to the commencement of the trial and that counsel had informed him that the trial would be concluded in time for the court to assume the Staten Island assignment.

After this application was denied, the defendant presented his case which consisted solely of his testimony that on the afternoon of the crime he had been in his apartment with two friends. On cross-examination the prosecutor emphasized the weakness of the defense by asking the defendant: 'Isn't it a fact that it was not until recently that you decided to name Lopez one of the witnesses?'

Both sides rely exclusively on People v. Jackson, 111 N.Y. 362, 19 N.E. 54, decided by this court in 1888. In that case we held that the following standards announced by Lord Mansfield in King v. D'Eon (1 W. Black. 510) were applicable to motions of this nature: "to put off a trial it must appear (1) that the witness is really material and appears to the court to be so; (2) that the party who applies has been guilty of no neglect; (3) that the witness can be had at the time to which the trial is deferred".

The People argue that the testimony of Mrs. DeJesus was not material to the alibi defense and that the defendant did not demonstrate a diligent effort to guarantee her presence on the day her testimony was needed. This argument has some merit. According to the defendant's own testimony, Mrs. DeJesus did not come to his apartment until some time after the burglary had been committed. And apparently he made no serious effort to subpoena her until Thursday evening or early Friday morning and was unsuccessful despite the fact that she resided in the same apartment building as he did.

But there is no doubt that the testimony of Martin Lopez would have been material to the alibi issue since the defendant had testified that Lopez had been with him at the time the robbery was committed. The defendant's efforts to insure his presence at the trial while unsubstantiated, were uncontested and there is no suggestion that defense counsel was being less than candid with the court. Whether Lopez could have been located and brought before the court within a reasonable time does not appear from the record, because the court refused to consider granting any adjournment which would interfere with the Staten Island assignment scheduled for Monday morning.

In Jackson, 111 N.Y. 362, 19 N.E. 54, Supra, we also indicated that a request of this nature is addressed to the discretion of the court, which is consistent with the general rule that the granting or denial of any adjournment by a Trial Judge is a matter of discretion. (People v. Oskroba, 305 N.Y. 113, 117, 111 N.E.2d 235, 237; see, also, Cohen and Karger, Powers of the New York Court of Appeals, § 151.) However recent decisions of this court reflect a more liberal policy in favor of granting a short adjournment--and thus more narrowly construing the court's discretionary power--when the delay is requested in order to insure a fundamental right.

The application of this principle is most readily apparent in those cases in which the defendant has sought an adjournment in order to obtain a transcript of pretrial testimony of prosecution witnesses. Our holding in People v. Ballott, 20 N.Y.2d 600, 604--605, 286 N.Y.S.2d 1, 4, 233 N.E.2d 103, 105, is typical of the approach we have consistently followed in cases of this nature: 'The defendant desired...