People v. Hawkins
| Citation | 15 N.Y.S.3d 485,130 A.D.3d 1298,2015 N.Y. Slip Op. 06265 |
| Decision Date | 23 July 2015 |
| Docket Number | 105521 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Andre HAWKINS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
130 A.D.3d 1298
15 N.Y.S.3d 485
2015 N.Y. Slip Op. 06265
The PEOPLE of the State of New York, Respondent
v.
Andre HAWKINS, Appellant.
105521
Supreme Court, Appellate Division, Third Department, New York.
July 23, 2015.
Alexander W. Bloomstein, Hillsdale, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joey Drillings of counsel), for respondent.
Before: McCARTHY, J.P., EGAN Jr., LYNCH and DEVINE, JJ.
Opinion
EGAN JR., J.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered July 27, 2012, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts).
In April 2011, as the result of an investigation by the Ulster Regional Gang Enforcement Narcotics Team (hereinafter URGENT), defendant was indicted and charged with two counts of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree. The charges stemmed from two separate and targeted buys in April 2010, wherein defendant sold narcotics to an undercover officer assigned to URGENT and working in conjunction with a confidential informant (hereinafter CI). Although a warrant for defendant's arrest was issued in April 2011, he was not apprehended until he turned himself in to authorities in October 2011. Following defendant's arraignment, defense counsel moved to dismiss the indictment upon statutory speedy trial grounds, contending, among other things, that the People failed to exercise due diligence in locating defendant. A hearing ensued, at the conclusion of which County Court found that the People had satisfied their due diligence obligation; as a result, the 200 days that elapsed between the filing of the indictment in April 2011 and the People's statement of readiness in October 2011 were not chargeable to the People, and defendant's speedy trial motion was denied.
The matter proceeded to trial, at which time both the undercover officer and defendant, among others, appeared and testified as to the underlying drug transactions. Defendant was convicted as charged and thereafter was sentenced, as a second felony offender, to concurrent prison terms of 10 years followed by three years of postrelease supervision. This appeal by defendant ensued.
We affirm. Initially, we find no merit to defendant's claim that County Court erred in denying his speedy trial motion. Inasmuch as defendant was charged with felony offenses, the
People were required to be ready for trial within six months (see CPL 30.30[1][a] ). “In computing the time within which the People must be ready for trial, the court must exclude ‘the period of delay resulting from the absence or unavailability of the defendant’ ” (People v. Devore, 65 A.D.3d 695, 696, 885 N.Y.S.2d 497 [2009], quoting CPL 30.30[4][c][i] ). For purposes of the statute, and insofar as is relevant here, “[a] defendant must be considered absent whenever his [or her] location is unknown and ... [such] location cannot be determined by due diligence” (CPL 30.30[4][c][i] ; see
People v. Devino, 110 A.D.3d 1146, 1148, 973 N.Y.S.2d 372 [2013] ). “The determination of whether the People have exercised due diligence in locating a person is a mixed question of law and fact” (People v. Grey, 259 A.D.2d 246, 248, 699 N.Y.S.2d 147 [1999], lv. denied 94 N.Y.2d 880, 705 N.Y.S.2d 12, 726 N.E.2d 489 [2000] [citation omitted] ), and “[w]hile minimal attempts to locate a defendant and secure his [or her] presence in court will not satisfy the due diligence standard, the police are not obliged to search for a defendant indefinitely as long as they exhaust all reasonable investigative leads as to his [or her] whereabouts” (People v. Delaronde, 201 A.D.2d 846, 847–848, 608 N.Y.S.2d 338 [1994] ; accord People v. Petrianni, 24 A.D.3d 1224, 1224, 806 N.Y.S.2d 835 [2005] ; see People v. Devino, 110 A.D.3d at 1148–1149, 973 N.Y.S.2d 372 ).
Here, there is no dispute that 200 days elapsed between the filing of the indictment in April 2011 and the People's declaration of readiness in October 2011, and the record makes clear that defendant's whereabouts were unknown to law enforcement officials during this time period. Hence, the issue distills to whether the People exercised due diligence in attempting to locate defendant. In this regard, a detective with the City of Kingston Police Department in Ulster County who, in turn, was assigned to URGENT, testified that, immediately after the warrant for defendant's arrest was issued, he reached out to the CI who had participated in the underlying drug transactions in an effort to obtain an address or phone number for defendant. When that effort proved to be unsuccessful, the detective ran defendant's criminal history report and obtained a former address for defendant in the City of Schenectady, Schenectady County. Within one week of the issuance of the arrest warrant, the detective contacted the City of Schenectady Police Department and asked that they check the address in question.
When a check of the Schenectady County address failed to locate defendant, the detective entered defendant's arrest warrant into the New York State Police Information Network database in May 2011, a nationwide database of active arrest warrants. The detective further testified that, in July 2011, a
fellow URGENT member ran a “comprehensive report” through another law enforcement database in an effort to obtain a list of defendant's last known addresses. Based upon the results of this search and information obtained from another informant,1 the detective obtained an address for defendant in the City of Poughkeepsie, Dutchess County and again requested that local law enforcement check the location provided. When that effort failed, the detective reached out to a fellow URGENT member who, in September 2011, put him in touch with the United States Marshals Service in the City of Albany. In October 2011, the Marshals Service was able to locate and contact defendant's “ significant other,” who relayed a message to defendant. Shortly thereafter, defendant turned himself in to the authorities.
In light of the foregoing efforts, it cannot be said that “the authorities shirked their continuing obligation of due diligence” (People v. Marrin, 187 A.D.2d 284, 286, 589 N.Y.S.2d 874 [1992], lv. denied 81 N.Y.2d 843, 595 N.Y.S.2d 742, 611 N.E.2d 781 [1993] ; accord People v. Petrianni, 24 A.D.3d at 1225, 806 N.Y.S.2d 835 ). Although defendant averred that he was “living openly” and receiving mail at a
particular address during the relevant time period and faults the People and law enforcement for failing to check his Social Security number against the records of various governmental agencies, counsel conceded at oral argument that defendant's name was not on the lease for the premises, and the record is devoid of proof that defendant registered that address with any entity, including the United States Postal Service, the Department of Motor Vehicles, the Department of Labor and/or state and federal taxing authorities (compare People v. Devino, 110 A.D.3d at 1149, 973 N.Y.S.2d 372 ; People v. Devore, 65 A.D.3d at 697, 885 N.Y.S.2d 497 ). Under these circumstances, we are satisfied that the People discharged their due diligence obligation—even if “greater efforts could have been undertaken” (People v. Grey, 259 A.D.2d at 249, 699 N.Y.S.2d 147 ). Accordingly, defendant was not deprived of his statutory right to a speedy trial.
Nor are we persuaded that County Court erred in permitting the People to amend the indictment. CPL 200.70(1) provides, in relevant part, that “[a]t any time before or during trial, the court...
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