People v. Salazar

• Decision Date: 10 March 1999
• Parties: , 1999 N.Y. Slip Op. 99,143 The PEOPLE of the State of New York, Plaintiff, v. Diony SALAZAR, Defendant.
• Court: New York Supreme Court

Page 401

688 N.Y.S.2d 401

180 Misc.2d 128, 1999 N.Y. Slip Op. 99,143

The PEOPLE of the State of New York, Plaintiff, v. Diony SALAZAR, Defendant.

Supreme Court, Kings County, New York.

March 10, 1999.

Samuel Militello, New York City, for defendant.

Charles J. Hynes, District Attorney of Kings County, Brooklyn (Robert Lamb of counsel), for plaintiff.

JOHN M. LEVENTHAL, J.

The issue of first impression to be determined by this Court is whether a defendant can forfeit his statutory right to a speedy trial. This question is answered in the affirmative.

PROCEDURAL HISTORY

The defendant had moved this Court to dismiss the indictment on statutory speedy trial grounds (CPL 30.30). The People filed opposition papers. After oral argument, this Court granted a hearing to determine

the reasons for the 182-day period from December 10, 1997 until June 10, 1998. (People v. Salazar, NYLJ, 11/17/98, p. 32, col. 3). The People argue that defendant's conduct was intended to and did in fact cause the complainant, defendant's former girlfriend, to refrain from testifying at trial or before the Grand Jury on the resubmission of certain counts. The defendant maintains that the People failed to use due diligence to secure the complainant's attendance.

SPEEDY TRIAL TIME

The Court notes that the applicable six-month speedy trial time consists of 183 days. ¹ The adjournment from defendant's arraignment dates in Criminal Court (April 16, 1997 under Docket 97K030616 and April 26, 1997 under Docket 97K033326) until May 22, 1997, the date the People filed their statement of readiness, is charged to the People, a matter of 36 days as to counts one through seven and 26 days as to counts eight through eleven. ² (People v. Correa, 77 N.Y.2d 930, 569 N.Y.S.2d 601, 572 N.E.2d 42; People v. Kendzia, 64 N.Y.2d 331, 486 N.Y.S.2d 888, 476 N.E.2d 287; People v. Hamilton, 46 N.Y.2d 932, 415 N.Y.S.2d 208, 388 N.E.2d 345).

On November 5, 1997, the Court dismissed counts one through four of the indictment with leave granted to the people to re-present. ³ A number of serious crimes survived dismissal, namely, Sodomy in the First Degree (two counts) and Criminal Contempt in the First Degree (three counts).

FORFEITURE OF STATUTORY SPEEDY TRIAL RIGHT

Courts have consistently denied a defendant's motion to dismiss an indictment on statutory speedy trial grounds when the defendant's acts or conduct had caused the delay (see, People v. Singletary, 54 A.D.2d 767, 387 N.Y.S.2d 878; People v. Ellis, 123 Misc.2d 544, 474 N.Y.S.2d 188; People v. Rupp, 75 Misc.2d 683, 348 N.Y.S.2d 649; CPL 30.30[g] ). This Court observes that a different analysis is in order, namely, whether a defendant forfeits his statutory right to a speedy trial when his conduct is the cause of the delay.

Courts have held that a defendant may forfeit her constitutional right to be present at her trial and sentence (People v. Sanchez, 65 N.Y.2d 436, 492 N.Y.S.2d 577, 482 N.E.2d 56; Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174) as well as her right of confrontation and her right to assert an evidentiary objection against the admission of a witness' out of court declarations due to a defendant's misconduct. (People v. Cotto, 92 N.Y.2d 68, 76, 677 N.Y.S.2d 35, 699 N.E.2d 394; People v. Geraci, 85 N.Y.2d 359, 366, 625 N.Y.S.2d 469, 649 N.E.2d 817; Steele v. Taylor, 684 F.2d 1193 (6th Cir. 1982) cert. den. 460 U.S. 1053, 103 S.Ct. 1501, 75 L.Ed.2d 932; compare cases cited supra with Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 460 N.Y.S.2d 591; United States v. Mastrangelo, 693 F.2d 269, 273 cert. den. 467 U.S. 1204, 104 S.Ct. 2385, 81 L.Ed.2d 343, and United States v. Thevis, 665 F.2d 616, cert. den. sub nom. Evans v. United States, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 [where principle is characterized as "waiver by misconduct."] )

A defendant may even forfeit his right to counsel under appropriate circumstances (People v. Gilchrist, 239 A.D.2d 306, 658 N.Y.S.2d 269, lv. den. 91 N.Y.2d 834, 667 N.Y.S.2d 688, 690 N.E.2d 497) and his right to have a motion (People v. Panico, 130 A.D.2d 777, 778, 515 N.Y.S.2d 849) or appeal (People v. Del Rio, 14 N.Y.2d 165, 169, 250 N.Y.S.2d 257, 199 N.E.2d 359) heard and decided.

"A 'waiver' ordinarily involves a conscious and voluntary relinquishment of a known right. (See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464 [58 S.Ct. 1019, 82 L.Ed. 1461] )." (People v. Geraci, 85 N.Y.2d at 366, fn. 2, 625 N.Y.S.2d 469, 649 N.E.2d 817, supra ). "Forfeiture unlike an express waiver which involves an evolution of defendant's state of mind, occurs by operation of law and as a matter of public policy (see, People v. Thomas, 53 N.Y.2d 338, 342 fn. 2 [441 N.Y.S.2d 650, 424 N.E.2d 537]; see also, Westen, Away From Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich.L.Rev. 1214, 1239, fn. 50 [(1977) ]" People v. Sanchez, 65 N.Y.2d at 443-445, 492 N.Y.S.2d 577, 482 N.E.2d 56, fn., supra).

The People's ability or readiness to proceed to trial may not be thwarted by a defendant's conduct that prevents the trial from going forward. (Taylor v. United States, 414 U.S. at 20, 94 S.Ct. 194, supra, citing Illinois v. Allen, 397 U.S. 337, 349, 90 S.Ct. 1057, 25 L.Ed.2d 353). The law will not "allow a person to take advantage of his own wrong." (People v. Geraci, 85 N.Y.2d at 366, 625 N.Y.S.2d 469, 649 N.E.2d 817, supra, citing United States v. Mastrangelo, 693 F.2d at 272, supra, quoting Diaz v. United States, 223 U.S. 442, 458, 32 S.Ct. 250, 56 L.Ed. 500). "The rule is invoked to [protect] the integrity of the adversary process by deterring litigants from acting on strong incentives to prevent the testimony of an adverse witness." (People v. Geraci, id., quoting Steele v. Taylor, 684 F.2d at 1202, supra).

There are powerful public policy considerations involved in not permitting an accused to take advantage of his own conduct in obstructing or impeding a complainant from coming forward to testify before either a grand jury or petit jury. This public policy is especially strong in cases involving allegations of domestic violence. When the accused and the complainant either had or continue to have an intimate relationship, the potential for abuse and manipulation of the complainant and the criminal justice system itself is great as the accused may exert power and control over his or her partner. Acts that are aimed to coerce and to intimidate may constitute a separate crime (see, e.g., P.L. §§ 215.11, 215.15). Conduct that may not rise to criminal behavior may nonetheless be improper amounting to a forfeiture of a right. (People v. Major, 251 A.D.2d 999, 675 N.Y.S.2d 260). This court holds that a defendant's misconduct causing delay in his trial may under appropriate circumstances trigger a forfeiture of his right to a speedy trial under CPL 30.30.

SIROIS HEARING

At the Sirois hearing held over a four-day period, both the complainant and the defendant testified.

The complainant, Emilia Palacio, testified that on April 14, 1997, both she and the defendant were arrested and charged with crimes against each other. Defendant was alleged to have committed sexual acts upon complainant while she was unconscious. ⁴ The complainant had allegedly stabbed the defendant in the stomach.

The defendant and the complainant through their respective attorneys withdrew their cross CPL 190.50 notices to testify before the Grand Jury. There apparently was either a tacit or overt agreement between the defendant and complainant and their attorneys not to proceed with the respective felony complaints. On April 25, 1997, however, the defendant was rearrested based on allegations that he violated the protective order issued in the aftermath of the April 14, 1997 incident. Complainant then testified before the Grand Jury on May 1, 1997 regarding both incidents, namely, April 14, and April 23 - 25, 1997. Complainant represented her residence address to be 90 Schenck Avenue, Brooklyn, New York on May 1, 1997. She stated to the Grand Jury that her mother's residence was 40-19 99th Street in Queens. ⁵

In about May 1997, the complainant was kicked out of her mother's home ostensibly because her mother was annoyed that the complainant was proceeding with the prosecution of the defendant. Ms. Palacio testified that she was "homeless" from May until November 1997 staying with her best friend Anthony Mendez for part of this time. The complainant returned to live with her mother in November 1997. She lived there until February 1998 when detective investigators from the District Attorney's Office met with her. After speaking to the assigned Assistant District Attorney on the telephone, the complainant again left her mother's house to stay with Mr. Mendez for approximately three or more weeks. At no time did the complainant inform the District Attorney's Office that she moved from her apartment to her mother's house or to Mr. Mendez's house. She never provided the People with a new address nor informed them that she had moved.

The complainant testified that she did not come forward to cooperate in the prosecution since May 1997 until some time after this motion to dismiss was filed on June 8, 1998 because her mother was being harassed by defendant and he had written her letters which had frightened her.

The complainant initially claimed that the defendant and/or his friends had harassed her mother into convincing complainant not to go forward with this prosecution. It was established, however, that the defendant had loaned the complainant's mother two hundred and forty dollars ($240.00) to pay the rent in March 1997, a date prior to the charges against the defendant being brought. This money was to be repaid by May 1997. The complainant testified that her mother did not want to be bothered at all by the criminal proceeding and wanted the complainant to drop the charges. The complainant, however, acknowledged that she did not...