People v. LaBounty

• Decision Date: 14 December 1984
• Citation: 104 A.D.2d 202,482 N.Y.S.2d 652
• Parties: PEOPLE of the State of New York, Appellant, v. Mark LaBOUNTY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 652

482 N.Y.S.2d 652

104 A.D.2d 202

PEOPLE of the State of New York, Appellant, v. Mark LaBOUNTY, Respondent.

Supreme Court, Appellate Division Fourth Department.

Dec. 14, 1984.

Richard J. Arcara, District Attorney, Buffalo (Jo Faber, Buffalo, of counsel), for appellant.

Rose H. Sconiers, Buffalo (Charles Halvorsen, Buffalo, of counsel), for respondent.

Before HANCOCK, J.P., and DOERR, DENMAN, BOOMER and O'DONNELL, JJ.

HANCOCK, Justice Presiding:

Because the People were not ready for trial within six months of the commencement of the criminal action as required by CPL 30.30, Supreme Court has dismissed a felony indictment charging defendant with two counts of rape, first degree and one count of unlawful imprisonment. In the People's appeal and the central question is whether the nine and one-half month delay from November 17, 1982, when the felony complaint was filed, until August 31, 1983, when the District Attorney's office first received notice of the complaint's filing, should be excluded as caused by "exceptional circumstances" (CPL 30.30, subd. 4, par. ). The People argue that it should, pointing out that the delay in notification arose from circumstances beyond their control which made it impossible for them to be ready for trial within the prescribed time limit. For reasons hereinafter stated, we agree with this contention.

On November 11, 1982, the victim, who lived in the same rooming house as defendant, reported to the Buffalo Police Department that he had raped her twice--once on November 10, 1982 and once on November 11, 1982, when he imprisoned her in his room for about six hours. Upon receipt of this report, Officer Chella went to defendant's room and talked to him. Chella returned on November 13, 1982 and was told by the manager of the rooming house that defendant had "left the premises hastily on 11/11/82 after talking with and hanot been seen since." ¹

On November 15, 1982, police obtained and executed a search warrant; on November 17, 1982, they filed the felony complaint and had an arrest warrant issued which, because defendant had disappeared, they could not execute. The clerk of the local court where the felony complaint was filed never transmitted a copy to the District Attorney's office (see CPL 110.20) and no other notification was given of the pending action based on the victim's complaint. The District Attorney's office did not learn of it until defendant's subsequent arrest on another charge.

During the next six months, in an effort to locate defendant, the police made inquiries in bars and other places he was known to frequent, sent a copy of the arrest warrant to the Welfare Investigation Department and caused his welfare checks to be stopped, forwarded photographs and fingerprints to the Rochester and Syracuse Police Departments requesting their assistance, and enlisted the aid of the state police in searching for defendant and in checking various records including those in the Department of Motor Vehicles.

On August 30, 1983, defendant was arrested under an alias in Ellenville, Ulster County, on an unrelated matter. When advised of this arrest, the Buffalo Police Department for the first time notified the Erie County District Attorney's office of the existence of the warrant stemming from the outstanding complaint.

At the argument of the CPL 30.30 motion, the People contended that the delay was excusable as resulting from their inability to proceed because they had no notice of the commencement of the action (see CPL 30.30, subd. 4, par. ) and because defendant had absconded to avoid prosecution and could not be found despite the diligent efforts of the police (see CPL 30.30, subd. 4, par. ). In its decision the court properly refused to exempt the time of defendant's unavailability (CPL 30.30, subd. 4, par. see People v. Sturgis, 38 N.Y.2d 625, 628, 381 N.Y.S.2d 860, 345 N.E.2d 331) noting that his absence could not be considered to have contributed to the delay since a prosecutor may, in any event, proceed to indict a fugitive defendant. ² The court, although alluding to the People's contention based on their lack of awareness of the criminal action, rejected this argument without comment. We conclude that on this record the court, in the exercise of its discretion, should have excluded the time from November 17, 1982 to August 31, 1983 as delay due to "exceptional circumstances" (CPL 30.30, subd. 4, par. ). Accordingly, the motion should be denied and the indictment reinstated.

Whether a court should find "exceptional circumstances" (CPL 30.30, subd. 4, par. ) calls for an exercise of its discretion in analyzing the facts peculiar to the situation presented (see People v. Rivera, 98 Misc.2d 986, 991, 414 N.Y.S.2d 972; People v. Tolkow, 80 Misc.2d 1051, 1053, 364 N.Y.S.2d 756; 3 Zett, New York Criminal Practice, par. 23.5). No decision purports to give a definition of the term "exceptional circumstances" or to lay down guidelines as to when a court should find the existence of such circumstances. But analysis of cases where "exceptional circumstances" have been found reveals two common factors: (1) that the delay was due to circumstances beyond the control of the District Attorney's office; and (2) that it prevented the prosecution from being ready for trial. Situations held to constitute "exceptional circumstances" include the refusal by a foreign jurisdiction to surrender the defendant to New York authorities (see People v. Lowman, 102 A.D.2d 896, 476 N.Y.S.2d 937), the trial court's failure to arraign defendant (see People v. Smith, 97 A.D.2d 485, 468 N.Y.S.2d 129; see also People v. Sturgis, 38 N.Y.2d 625, 627, 381 N.Y.S.2d 860, 345 N.E.2d 331, supra, excluding delay due to the court's retention of all papers pertaining to the action), and the lack of grand jury minutes caused by the nervous breakdown of a court stenographer who took unintelligible notes (see People v. Hall, 61 A.D.2d 1050, 403 N.Y.S.2d 112). On the other hand, courts have declined to find "exceptional circumstances" where the delay was caused by factors for which the People were responsible or over which they had some control such as the claimed inability of the District Attorney's office to handle a backlog of cases due to an inadequate staff (see People v. Sturgis, supra, 38 N.Y.2d 628-629, 381 N.Y.S.2d 860, 345 N.E.2d 331), the defendant's incarceration in another jurisdiction where the New York authorities made no effort to have him returned (see People v. Winfrey, 20 N.Y.2d 138, 144, 281 N.Y.S.2d 823, 228 N.E.2d 808), and the unavailability of grand jury minutes because a stenographer left the office (see People v. Ferrara, 102 Misc.2d 253, 260-261, 423 N.Y.S.2d 370, noting that the People are...