People v. Juan R.

• Decision Date: 16 June 1992
• Citation: 153 Misc.2d 400,589 N.Y.S.2d 256
• Court: New York Supreme Court
• Parties: The PEOPLE of the State of New York v. JUAN R., Defendant.

Page 256

589 N.Y.S.2d 256

153 Misc.2d 400

The PEOPLE of the State of New York v. JUAN R., Defendant.

Supreme Court, Bronx County Part 47.

June 16, 1992.

Robert T. Johnson, Dist. Atty. by Robert Kelly, Asst. Dist. Atty., for the People.

Gordon Fine, Emdin Fine & Finkler, New York City, for defendant.

RICHARD LEE PRICE, Justice:

This case is an unusual one and presents issues of first impression in this state. It is but the tip of the iceberg in AIDS-related litigation and raises the question of the clash between a defendant's right to a speedy trial and his right to privacy of his medical condition.

The matter was sent to this Court to resolve this very question because the delay caused by litigating the privacy issue extended beyond the speedy trial time limits. Defendant argues that the time spent protecting and enforcing his right to privacy should be charged to the People because it was they who forced him to assert that right by asking the Court to compel him to undergo an AIDS blood test and then permit disclosure of the results. The People, on the other hand, argue that even though defendant had the right to press his objection, during the time that he was doing so they were stalled in progressing with the case. Although the defendant has the right to assert that his constitutionally guaranteed right to privacy was violated by the acts of the People, he cannot use that right as both a sword and a shield by claiming that the delay occasioned by litigating the privacy issue deprived him of his right to a speedy trial.

The analysis of this matter was more than a pro forma review of the various adjourned dates to determine which time was "excludable" under C.P.L. § 30.30(4)(a). Consideration was given to the nature of the charges and the attendant circumstances, along with the constitutional ramifications regarding an intimate and personal question in an area where there is little precedent. This Court is aware of the emotional state of both the defendant and the complainant, and appreciates the quality of the advocacy on both sides--both from the moving papers, the response and from the hearing which was conducted.

The total amount of time potentially chargeable to the People is 202 days. Although this is over the statutory six month (181 day) limit, the People argue that the time should nevertheless be excluded pursuant to the exceptions set forth in C.P.L. § 30.30(4)(a). This Court also considered whether the defendant's constitutional due process rights were violated under C.P.L. § 30.20.

For the following reasons, defendant's motion to dismiss the indictment on due process and C.P.L. § 30.30 grounds is denied.

On February 8, 1989, the defendant was arrested and charged with Assault in the Second Degree [P.L. § 120.05(3) ] among other charges. It is alleged that during the course of the defendant's arrest, he hit the arresting officer in the face with a bottle, and then bit the officer on the hand, breaking the skin. The defendant told the officer that he had AIDS, and that the officer had one year to live. As Dante Aligheri stated so eloquently in the Inferno All hope abandon, ye who enter here! ¹

The defendant was arraigned on the felony complaint and subsequently released pursuant to § 180.80 C.P.L.

On March 22, 1989, the People requested that the defendant submit to an AIDS test. The defendant refused, and on June 1, 1989, the People made a motion to compel the defendant to submit to the test. This motion was granted after oral argument on January 8, 1990. It should be noted however, that a major portion of the intervening seven months was excludable for various reasons, the most important being that the defendant decided to consent to the test and then later on, withdrew his consent.

Ultimately, the test was performed, and most of the time until September 28, 1990 was spent hearing and deciding a motion by the People to permit disclosure of the test results to them since the defendant objected to same. The disclosure order was granted on that date, and it was reported to the People that the defendant did, indeed, test positive for AIDS.

On October 23, 1990 the People moved for additional disclosure to the Grand Jury of the test results, pursuant to P.H.L. § 2785, for their consideration of a charge of Attempted Murder. This second disclosure motion was granted on January 31, 1991. After other various adjournments, the case was ultimately presented to the Grand Jury and the defendant was indicted for Attempted Murder in the First Degree.

After calculating the includable and excludable time, this Court determined that the total amount of time chargeable to the People is 202 days, which is, obviously beyond the six months time permitted within which the People must be ready for trial.

Legal Analysis

During oral argument the People raised certain questions of law which has led to the second tier of analysis: that being, despite the fact that the defendant has shown that there has been a prima facie violation of C.P.L. § 30.30, in that over 181 days are chargeable to the People, is there nonetheless, additional time to be excluded under the "unavailable material evidence" provision of C.P.L. § 30.30(4)(g)(i), or the "exceptional circumstance" provision of C.P.L. § 30.30(4)(g)(ii)? Both arguments are closely related.

The People argued first, that they were not going to present the case to the Grand Jury until they ascertained whether the defendant had AIDS. They analogized the situation to a "gun case" without the ballistics report showing the operability of the gun. This argument was an integral part of their second argument, which was that this evidence (that the defendant tested positive for AIDS) was material to the People's case and was unavailable first through the defendant's refusal, and then by operation of Statute, until such time as the Court issued the disclosure orders. The People argued that they exercised due diligence to get this evidence as required by C.P.L. § 30.30(4)(g)(i).

The People's third argument was that because of the defendant's refusal, consent, and subsequent refusal to the test and subsequent refusal to agree to release the results, this case was one which involved an "exceptional circumstance" under C.P.L. § 30.30(4)(g)(ii).

This Court has considered the People's three arguments, and finds them persuasive. This Court has also considered the legal ramifications of a lengthy preindictment delay, and whether a 26 month delay on its face alone, violates defendant's constitutional right to a speedy trial and therefore warrants dismissal of the indictment pursuant to C.P.L. § 30.20.

This Court agrees with the People's first argument that they could not present the case to the Grand Jury until they received the results of the defendant's AIDS test. First, it is axiomatic that the District Attorney has broad discretion in presenting matters to the Grand Jury (C.P.L. § 190.55; see e.g., Johnson v. Town of Colonie, 102 A.D.2d 925, 477 N.Y.S.2d 513 (3rd Dept.1984); People v. Rockwell, 97 A.D.2d 853, 469 N.Y.S.2d 252 (3rd Dept.1983). See also, Holtzman v. Goldman, 71 N.Y.2d 564, 528 N.Y.S.2d 21, 523 N.E.2d 297 (1988); People v. DiFalco, 44 N.Y.2d 482, 406 N.Y.S.2d 279, 377 N.E.2d 732 (1978)). The District Attorney has the discretion to reduce, add or amend charges. People v. Bowman, 88 Misc.2d 50, 387 N.Y.S.2d 982 (Cr.Ct.1976). It has been held that the Courts "have no control over the discretion exercised by the prosecutor and they have no authority to mandate a District Attorney to perform or not to perform his discretionary functions." People v. Ruggieri, 100 Misc.2d 585, 588, 419 N.Y.S.2d 869 (Cty.Ct.1979).

In the case at bar, there has been a lengthy pre-indictment delay because of the position the defendant took with regard to the AIDS test and its results. Case law has held that lengthy preindictment delays can be justified by an investigation conducted in good faith. Was the delay here the result of a good faith "investigation" into the defendant's status vis-a-vis the AIDS virus? This Court finds in the affirmative.

It is this Court's opinion that material evidence (the results of the defendant's AIDS test), necessary to the People's case, was not available to the People for the period from June 1, 1989 until January 31, 1991, while the various motions were pending. It was not until the positive test results were permitted to be disclosed to a Grand Jury that the case could, indeed, be presented. In order for the People to seek an indictment for Attempted Murder in the First Degree, they must set forth evidence before the Grand Jury showing that the defendant attempted to intentionally cause the death of the officer. Without ruling on whether it is possible to transmit AIDS via a human bite, judicial notice is taken of the fact that there is presently no cure for AIDS and, as such, it is fatal. The Bible says,

The land of darkness and the shadow of death. ²

It is clear that without the information that the defendant had AIDS, the People's case would lack the material ³ element of defendant's capability of causing death. Without this evidence, the People's case would merely be one of a human bite, possibly a misdemeanor assault, which would most likely not be presented to the Grand Jury.

The fact remains that the only way the People could get this information was from the defendant himself, whether voluntarily or involuntarily. ⁴ Therefore, this Court finds that the People were entitled to pursue their investigation for this information. As it was the defendant who "controlled" the situation, I find that the People acted in good faith and were justified in pursuing the legal means in order to obtain the needed information.

Defendant's argument that the People should have immediately proceeded into the Grand Jury without the test results and obtain an indictment for assault is without merit. United States v. Lovasco, 431 U.S. 783, 97 S.Ct....