People v. Luperon

• Decision Date: 12 January 1995
• Citation: 623 N.Y.S.2d 735,647 N.E.2d 1243,85 N.Y.2d 71
• Parties: , 647 N.E.2d 1243 The PEOPLE of the State of New York, Respondent, v. Fernando LUPERON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 735

623 N.Y.S.2d 735

85 N.Y.2d 71, 647 N.E.2d 1243

The PEOPLE of the State of New York, Respondent, v. Fernando LUPERON, Appellant.

Court of Appeals of New York.

Jan. 12, 1995.

Laura Boyd and Philip L. Weinstein, New York City, for appellant.

Charles J. Hynes, Dist. Atty. of Kings County, Brooklyn (Ann Bordley, Roseann B. MacKechnie and Richard T. Faughnan, of counsel), for respondent.

OPINION OF THE COURT

TITONE, Judge.

Defendant was charged with attempted murder and related offenses in a felony complaint that was filed on August 2, 1989. More than 15 months later, defendant moved to dismiss the charges, arguing that the People's October 26, 1990 statement of readiness came too late to satisfy their obligations under CPL 30.30. Inasmuch as a bench warrant for defendant had been issued and was outstanding during a substantial portion of the period between defendant's arraignment and the People's readiness declaration, the critical issue is the extent to which the People may rely on the exclusion provided in CPL 30.30(4)(c) to excuse their protracted unreadiness. Resolution of that question, in turn, depends on whether the entire period between the issuance of a bench warrant for defendant's arrest and the People's readiness declaration is excludable even though a 69-day portion of that period elapsed before efforts to execute the warrant were initiated. Concluding that the police's subsequent efforts to enforce the warrant do not insulate the People from judicial review of their prior inaction, we hold that the 69-day period of inaction is not excludable and that, in the absence of a cognizable explanation for other prereadiness delays, the indictment should have been dismissed.

I.

Defendant, who was accused of wounding his landlord in a shooting incident, was arraigned on a felony complaint on August 2, 1989. He was released two days later when the prosecutor informed the court that no Grand Jury action had yet been taken against him (see, CPL 180.80). Defendant did not appear on the next scheduled adjourn date, and a bench warrant was issued for his arrest. Defendant was arrested on unrelated charges on October 16, 1989, at which time the existence of the outstanding bench warrant was discovered. Since the Grand Jury had still not acted on the charges arising from the shooting incident, the court once again released defendant on his own recognizance four days later (see, id.).

Defendant was indicted for crimes associated with the assault on his landlord on December 8, 1989, but no Supreme Court arraignment was scheduled and no notice was sent to defendant or his attorney (see, CPL 210.10[2]. An ex parte order for defendant's arrest was issued on December 19, 1989. Defendant did not appear until October 5, 1990, when he was located and returned on the warrant. At that point, the People requested and were granted a short-term adjournment. ¹ Their "readiness" declaration was made on the adjourn date, October 26, 1990.

One month later, defendant moved to dismiss the indictment, alleging that the People were inexcusably "unready" for a total of "451 days," far more than the 184 days that CPL 30.30 allowed them in these circumstances. According to the defense papers, a large segment of this period--i.e., the "289-day period" between the issuance of the second bench warrant (December 19, 1989) and defendant's return on that warrant (October 5, 1990)--was not excludable under CPL 30.30(4)(c) because the People had not exercised due diligence in locating defendant during that period. Defendant also argued that the People were accountable for an additional "162 days" of unexcused delay. Notably, although there were no errors in the relevant dates cited in defendant's motion papers, defense counsel had miscalculated the number of days involved in the various identified periods. In fact, the period between the issuance of the bench warrant and defendant's return was 290 days, the additional days of claimed unexcused delay totaled 192 and the full period that defendant identified as being chargeable to the People totaled 482 days. Inasmuch as the court had indicated that "the hearing will be the determining factor" and that a lengthy reply was unnecessary, the prosecutor submitted only a brief responsive affirmation, stating that "[a] review of the papers submitted establish that the defendant's motion will depend on the efforts made by the Police Department in arresting the defendant on the various warrants."

At the hearing, the People called Police Officer Elliot Rice, who had been assigned the responsibility of executing the December 19, 1989 warrant on February 26, 1990. Rice immediately made inquiries about defendant with the Correction Department. In April 1990, he made an unsuccessful attempt to locate defendant at the address on the warrant. Over the succeeding few months, Rice made an inquiry at the Post Office, contacted the Correction Department again, checked with the Department of Motor Vehicles, visited a second address listed on defendant's rap sheet and revisited defendant's former landlady, the complainant's wife. Finally, on October 4, 1990, defendant was located and arrested after his former landlady spotted him in the neighborhood and notified Rice.

During the oral argument following the hearing, defense counsel argued that although some efforts were made to locate defendant after February 26, 1990, there was no showing of any similar efforts between that date and December 19, 1989, the date the warrant was issued. Consequently, defense counsel contended, that period was not excludable under CPL 30.30(4)(c). And, when that period was added to other identified periods of unexcused delay, the statutorily authorized time for the People to become ready had been exceeded.

The People responded by arguing that Officer Rice had made "all reasonable * * * effort" to execute the warrant and that "the People are [not] under any obligation to pursue every potential avenue." With respect to "the other aspect of defendant's motion," the prosecutor argued that a "substantial amount of th[e] time [before indictment] is excludable [if, in fact, defendant had put in a notice that he wished to testify before the Grand Jury]." Additionally, the prosecutor stated, "[t]he People have a reasonable time to arraign that would be excludable."

On the basis of the argument and evidence presented at the hearing, the trial court ruled that the People had demonstrated over-all diligence, notwithstanding that two months had elapsed before their efforts to enforce the December 19, 1989 warrant began. Consequently, defendant's CPL 30.30 motion for dismissal was denied, and the matter proceeded to trial. Defendant was ultimately convicted of one count of first degree assault and one count of second degree criminal possession of a weapon. The judgment of conviction was subsequently affirmed by the Appellate Division, which enumerated Officer Rice's efforts and found that they amounted to the requisite diligence. This appeal, taken by permission of a Judge of this Court, ensued.

II.

Defendant's appeal presents yet another variant on the question of the People's CPL 30.30 obligation to ready their case during the absence or unavailability of the accused. The focus of the inquiry is CPL 30.30(4)(c), which excludes from the calculation of the People's readiness time "the period extending from the day the court issues a bench warrant pursuant to [CPL] 530.70 because of the defendant's failure to appear in court when required, to the day the defendant subsequently appears in the court". A condition precedent to the use of this provision is a showing that "the defendant [wa]s absent or unavailable and has either escaped from custody or has previously been released on bail or on his own recognizance" (CPL 30.30[4][c]. Under the statute, "[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" (id.). A defendant is "unavailable" "whenever his location is known but his presence for trial cannot be obtained by due diligence" (id.).

Defendant's first argument on this appeal is that the above-quoted provision, which was adopted to mitigate the effects of this Court's decision in People v. Sturgis, 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331; see, People v. Bolden, 81 N.Y.2d 146, 152, 597 N.Y.S.2d 270, 613 N.E.2d 145; Preiser, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 11A, CPL 30.30, at 171-172, is inapplicable to his case. As defendant points out, he was never notified of his indictment or of a scheduled arraignment date. Accordingly, defendant argues, the December 19, 1989 bench warrant was not one that was issued "because of the defendant's failure to appear in court when required," and the specific language of CPL 30.30(4)(c) that was aimed at cases involving certain absconders is unavailable (cf., People v. Bolden, supra, at 153, n. 3, 597 N.Y.S.2d 270, 613 N.E.2d 145).

Whether or not defendant's argument has merit, it was not raised in the trial court and therefore cannot be considered here. While the defense may satisfy its initial burden under CPL 30.30 by alleging only that the prosecution failed to declare readiness within the statutorily prescribed time period (see, e.g., People v. Cortes, 80 N.Y.2d, at 201, 590 N.Y.S.2d 9, 604 N.E.2d 71; People v. Santos, 68 N.Y.2d 859, 508 N.Y.S.2d 411, 501 N.E.2d 19; People v. Berkowitz, 50 N.Y.2d 333, 428 N.Y.S.2d 927, 406 N.E.2d 783), that principle concerns the substantive burden of proof and does not alter the basic rules of preservation, which determine what questions are reviewable in this Court (see, CPL 470.05[2]. Those rules require, at the very least, that any matter which a party wishes the appellate court to decide have been brought to the attention of the trial court at a time and in a way that gave the...