People v. Ladson

• Decision Date: 08 March 1994
• Citation: 202 A.D.2d 212,608 N.Y.S.2d 966
• Parties: The PEOPLE of the State of New York, Respondent, v. Kenny LADSON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 966

608 N.Y.S.2d 966

202 A.D.2d 212

The PEOPLE of the State of New York, Respondent, v. Kenny LADSON, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

March 8, 1994.

Before MURPHY, P.J., and WALLACH, KUPFERMAN, ASCH and TOM, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Joan Carey, J.), rendered June 30, 1992, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him as a second felony offender to a term of from 2 to 4 years imprisonment, affirmed.

Defendant was not denied his statutory right to a speedy trial. His failure to return to court following his arraignment and parole, and his deliberate effort to conceal his identity and deceive the court and law enforcement personnel by providing false information both before and after a bench warrant issued for his nonappearance, reveal his intent to avoid apprehension and prosecution on this charge. These factors seem sufficient to us to distinguish this case from People v. Bolden, 81 N.Y.2d 146, 597 N.Y.S.2d 270, 613 N.E.2d 145, cited by the dissent. We thus hold that defendant was "absent" within the meaning of CPL 30.30(4)(c) for the period from May 14, 1990 to September 4, 1991, and it was therefore properly excluded as time chargeable to the People despite the admittedly minimal showing of prosecutorial diligence in bringing defendant to justice (People v. Patterson, 38 N.Y.2d 623, 381 N.Y.S.2d 858, 345 N.E.2d 330; People v. Walker, 133 A.D.2d 2, 518 N.Y.S.2d 392). And while deceit was a significant part of the factual mix in People v. Barasso, 193 A.D.2d 448, 597 N.Y.S.2d 681, lv. denied 81 N.Y.2d 1070, 601 N.Y.S.2d 589, 619 N.E.2d 667, we would note that the defendant in that case had been incarcerated and demonstrably subject to the People's control for a full year, in contrast to the few days preceding defendant's improvident release herein.

Defendant's contention that the police officer's forcible stop and frisk was constitutionally impermissible is without merit. The police officer arrived at the scene of a shooting and was told by a civilian eyewitness that defendant, who was walking away, possessed a weapon. Accordingly, the officer reasonably believed that defendant was armed, had committed a crime, presented a danger and was fleeing. The officer was thus justified in stopping and frisking defendant (People v. Benjamin, 51 N.Y.2d 267, 434 N.Y.S.2d 144, 414 N.E.2d 645; People v. DeBour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562).

We have considered defendant's remaining claims and find them to be without merit.

All concur except MURPHY, P.J., and ASCH, J., who dissent in a memorandum by MURPHY, P.J., as follows:

MURPHY, Presiding Judge (dissenting).

On April 27, 1990, defendant, whose full name is Joseph Kenny Ladson, was arrested in the 28th Police Precinct for criminal possession of a weapon. At the time of the arrest, defendant identified himself as "Kenny Ladson". Although he possessed a criminal record dating from 1977, the record was not obtained and he was charged as a first offender and assigned a new NYSID number. Following his arraignment on April 28, 1990, the defendant was released on his own recognizance. When he failed to appear in court on May 14, 1990, a bench warrant was issued.

On June 9, 1990, defendant was again arrested in the 28th Precinct, this time for unrelated misdemeanors. He identified himself on the occasion of this arrest as "Joseph Ladson" and supplied pedigree information differing in some respects from that given by him at the time of the April 27 arrest. A computer search employing defendant's name and physical and numeric descriptors, but not his fingerprints, failed to disclose the existence of the May 14 bench warrant. Defendant was, accordingly, arraigned and on June 10, 1990 again released upon his own recognizance.

More than one year later, on August 21, 1991, the defendant was arrested in Bergen County, New Jersey. Although he presented himself on the occasion of this arrest as "Ken Ladson", the New Jersey authorities were not thereby prevented from identifying him as the subject of the outstanding May 14, 1990 bench warrant and he was thereafter returned to New York for trial. Prior to the trial, which commenced on June 8, 1992, the defendant, claiming that some 16 of the 25 and 1/2 months which had passed since his arraignment were chargeable to the People, moved pursuant to CPL 30.30 for dismissal of the indictment upon the ground that he had been denied his right to a speedy trial. The motion was denied and it is the propriety of that denial which is at issue upon this appeal from the subsequently rendered judgment of conviction.

It is the People's position on this appeal, as it was in the motion court, that in computing whether they met their obligation to be ready for trial within six months of the commencement of the prosecution (CPL 30.30[1][a], they should not be accountable for the time between the May 14, 1990 bench warrant and the August 21, 1991 Bergen County arrest. This claim is made in reliance upon CPL 30.30(4) which provides in relevant part that:

In computing the time within which the people must be ready for trial ... the following periods must be excluded ... (c) the period of delay resulting from the absence or unavailability of the defendant or, where the defendant is absent or unavailable and has either escaped from custody or has previously been released on bail or on his own recognizance, the period extending from the day the court issues a bench warrant pursuant to section 530.70 because of the defendant's failure to appear in court when required, to the day the defendant subsequently appears in the court pursuant to a bench warrant or voluntarily or otherwise. A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence. A defendant must be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence.

The Court of Appeals has recently had occasion to consider whether this provision may be read to relieve the People of the obligation to exercise due diligence in securing a defendant's presence in situations where the defendant, having failed to make a required court appearance, has become the subject of a bench warrant. Although some courts had understood the statute to eliminate the due diligence requirement in such circumstances and, accordingly, to allow the People to exclude time solely by reason of a bench warrant's issuance, the Court in People v. Bolden, 81 N.Y.2d 146, 597 N.Y.S.2d 270, 613 N.E.2d 145 held squarely to the contrary, observing that "both the legislative history and the unambiguous language of CPL 30.30(4)(c) point inexorably to the conclusion that prosecutorial diligence in locating the defendant and/or securing his presence must be shown in order to invoke the exclusion for periods when the defendant was 'absent' or 'unavailable' and a bench warrant for his apprehension was outstanding" (at 155, 597 N.Y.S.2d 270, 613 N.E.2d 145).

While the People do not, and on this record could not, argue that they were diligent in their efforts to return the defendant to court, they nevertheless claim that they may exclude the time during which the May 14, 1990 bench warrant was outstanding because, during that period, "the defendant's location was unknown and he was attempting to avoid apprehension or prosecution," rendering him "absent" within the meaning of the statute.

As is confirmed in People v. Bolden, supra, the last-cited definitional language does indeed permit the People to establish "absence" without regard to prosecutorial diligence (at 152, fn. 1, 597 N.Y.S.2d 270, 613 N.E.2d 145). A showing of due diligence is presumably excused in circumstances coming within the cited definitional language in recognition of the fact that there are cases in which the failure to return the defendant to court is more aptly to be attributed to the efforts, and indeed success, of the defendant at avoiding capture, than any indiligence on the part of the People. Plainly, however, this provision was not intended entirely to supplant the due diligence requirement which, as Bolden makes clear, otherwise obtains as a condition of establishing a defendant's 'absence' or 'unavailability'. Accordingly, the People's satisfaction of the statutory criteria must be carefully evaluated to assure that the requirement of due diligence is not being dispensed with in circumstances where reasonable efforts to locate and apprehend the defendant would likely have been efficacious. In this regard, it is critical that when the People seek to exclude time in reliance upon the presently cited provision, they demonstrate both that the defendant's location was unknown and that he was attempting to avoid apprehension or prosecution. The criteria, it must be stressed, are conjunctive. It is not enough that the People did not know where the defendant was when his attempts at avoiding apprehension, if any, could have created no significant impediment to his return had due diligence been employed. Nor is it enough for the People to show that the defendant employed the most extraordinary devices and elaborate strategies to avoid capture when, these efforts notwithstanding, his location nevertheless became known. To permit the People the benefit of the claimed exclusion under either disjunctive application of the statutory criteria would effectively eliminate the requirement of prosecutorial diligence in the enforcement of judicial warrants, and that is a result which, as Bolden underscores, the statute cannot be understood to countenance.

For present purposes, it may be conceded that the defendant was "attempting to avoid apprehension or prosecution." (CPL 30.30[4][c].) The fact remains,...