People v. Mouliere

• Decision Date: 15 April 1983
• Citation: 118 Misc.2d 999,462 N.Y.S.2d 749
• Parties: The PEOPLE of the State of New York v. Alfredo MOULIERE, Defendant.
• Court: New York Supreme Court

Page 749

462 N.Y.S.2d 749

118 Misc.2d 999

The PEOPLE of the State of New York v. Alfredo MOULIERE, Defendant.

Supreme Court, Bronx County.

April 15, 1983.

Jeff Bernstein, Bayside, for defendant.

William Hrabsky, Asst. Dist. Atty., New York City, for the People.

HECHT, Judge:

The defendant, Alfredo Mouliere is charged in this indictment with the crimes of Attempted Murder 2? , Robbery 1? and related counts. The charges stem from an incident that occurred on May 29, 1980 when the defendant allegedly robbed the complainant, Lisandro Parza, and then attempted to shoot him with a pistol. The complainant was also repeatedly stabbed in the stomach and back with a knife during this incident.

Upon investigation, the police officers handling this matter had reason to believe that the defendant had fled the jurisdiction to Puerto Rico to avoid arrest. On July 17, 1980, a felony complaint was filed, and an arrest warrant was issued for Alfredo Mouliere by a judge in Bronx Criminal Court.

The defendant was finally arrested at his brother's apartment in the Bronx on March 25, 1982. An indictment on this matter was not returned and filed until May 12, 1982.

Defense counsel now moves for a dismissal of the indictment pursuant to C.P.L. 210.20(1)(g) and C.P.L. 30.30. He argues that the time period from the filing of the felony complaint until the indictment (approximately 1 year and 9 months) exceeds the 6 month statutory time period required for a trial of this defendant. [C.P.L. 30.30(1)(a) ]

A hearing on this matter was conducted and both sides have submitted written memorandums and made oral arguments before this court.

On a motion to dismiss an indictment for speedy trial grounds, the defendant has the initial burden of establishing by a preponderance of the evidence that he was denied his right to a speedy trial (C.P.L. 210.45(7)). Once defense counsel has established this, it is then the prosecution's burden to show that the time periods in question are excludable from the 6 month statutory limitations (C.P.L. 30.30(4) People v. Sturgis 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331, People v. Thill, 75 A.D.2d 709, 427 N.Y.S.2d 125).

C.P.L. 30.30(4) states that: "In computing the time within which the People must be ready for trial pursuant to subdivision one (6 month rule), the following periods must be excluded: c) the period of delay resulting from the absence ... of the defendant. 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."

As to the defendant's "absence" Mr. Mouliere testified at the hearing before this court that he was always living with his brother in the Bronx during the 1 year 9 month time period in question. He also testified that he worked at a number of jobs during this period (some proof of employment was submitted by defense counsel) Mr. Mouliere also stated that he saw and greeted the complainant, Parza, on a number of occasions on the street.

The defendant's testimony, however, was clearly refuted by the testimony of Nick Albaneze (a parole officer who at the time of this investigation was assigned to The Absconder Search Unit of New York State Parole Office). Both he and Detective Louis Pagnotta submitted sworn affidavits as to their parts in the investigation of this case.

In summary, the two investigators had ascertained on June 29, 1980 that Mr. Mouliere had fled the jurisdiction and had gone to Puerto Rico. A felony complaint and arrest warrant were issued for the defendant's arrest, and the Puerto Rican police authorities were notified. The evidence elicited shows that intensive efforts were then made by the two officers to locate the defendant. Numerous visits to the brother's apartment, (which included stake outs of the area) proved unsuccessful. The officers also interviewed the complainant, Parza, defendant's nephew, neighbors, representatives of Con Edison, the Welfare Department and the Post Office, possible places of defendant's employment, etc. during this time period. At one point, the officers had learned that the defendant had been in an automobile accident. A check of the Motor Vehicle Bureau and Police Department records did indicate that someone with the defendant's name had been involved in an automobile accident. On investigation, the address listed on the reports for the defendant (and allegedly given by him to the police) proved to be a vacant lot in the Bronx.

The defendant himself testified at the hearing that he had gone to Puerto Rico between April, 1980 and June, 1980. He also stated that he knew that his brother had been on trial (on an "acting in concert" theory) for the exact same offense to which Mr. Mouliere is now being charged (The brother was subsequently acquitted of all charges). Mouliere also testified that he knew that parole authorities had been looking for him and he knew that if arrested, he would be charged with violating his parole conditions.

The court finds that the evidence submitted establishes that the defendant was attempting to avoid apprehension or prosecution for the incident involving the complainant, Parza. His location was unknown to the two officers and they clearly exercised due diligence in their search for Mr. Mouliere. The court finds that the defendant's testimony that he was living "openly" in the Bronx during the period in question to be not credible.

The remaining issue before the court, on the speedy trial motion, is to determine whether the period of delay in obtaining the indictment against this defendant resulted from the absence of this defendant. Counsel for the defendant relies on the case of People v. Sturgis (supra) (See also People v. Rice 87 A.D.2d 894, 449 N.Y.S.2d 522, 2nd Dept.) in support of his motion to dismiss this indictment. In that case, a felony complaint was filed against the defendant, Sturgis. While initially appearing for the calendar calls of the case, Sturgis, at some point, failed to appear for court proceedings and was absent for a period of some 3 months. After Sturgis was arrested, the prosecution, then presented the case to the Grand Jury for indictment.

The Court of Appeals held that even though Sturgis had voluntarily absented herself during the 3 month period, this did not "cause the delay" in the People's failure to present the case to the Grand Jury. The Court of Appeals further held that the mere absence of the defendant alone will not relieve the prosecution from being "ready for trial" within the statutory time periods of C.P.L. 30.30. The prosecution must prove that the defendant's absence was a direct cause of the delay in the People not being "ready for trial" within the 6 month time period. Because there was no indictment, the People could not be "ready for trial" within the 6 month statutory time period, thus requiring the dismissal of the indictment.

A number of court decisions have expressed displeasure with the broad holding of the Sturgis decision. The cases point out that this holding seems to reward or encourage defendants in criminal cases to abscond once a felony complaint has been filed against them.

After much research by this court, and consideration of the memoranda of law submitted by both sides on this motion, the court has decided to deny the defendant's motion to dismiss this indictment on speedy trial grounds.

There are basically two issues that the court has considered in deciding this motion.

I Did the criminal action against the defendant "commence"

with the filing of the felony complaint?

C.P.L. 100.05 states that a criminal action against a defendant "commences" upon the filing of a felony complaint (See People v. Osgood 52 N.Y.2d 37, 436 N.Y.S.2d 213, 417 N.E.2d 507). The filing of the felony complaint usually occurs when the prosecution knows that the defendant is already in custody, or is expected to be in custody in the immediate future. In the case before this court involving Mr. Mouliere, however, this was not the case. The police never had the defendant in their custody until he was arrested on March 25, 1982, a period of 1 year and 9 months after the felony complaint was first filed.

The prosecution had to file the felony complaint on July 17, 1980, because their investigators had learned that the defendant had fled to Puerto Rico (this fact was borne out by the defendant himself at the hearing). The filing of the felony complaint was necessary so that the People could then obtain a court ordered arrest warrant for Mr. Mouliere. The Puerto Rican Authorities were then notified of the arrest warrant by the Bronx District Attorney's Office. With the court ordered arrest warrant, the Puerto Rican Police could conduct their own investigation as to the defendants whereabouts. If arrested in Puerto Rico, the defendant could then have been extradicted back to New York to face the charges against him. Without the arrest warrant, the Puerto Rican Police would have had no authority to arrest the defendant even if they knew where he was located (or even if they were able to arrest Mr. Mouliere on other charges). The defendant could not have been extradicted back to New York without the court-ordered arrest warrant. Unlike the Sturgis case, (which is factually distinguishable from the case here,) the prosecution and the New York Police never had jurisdiction over Mr. Mouliere. Under the facts and circumstances of this case, this court cannot hold that the...