People v. Zirpola

• Decision Date: 03 September 1982
• Citation: 57 N.Y.2d 706,454 N.Y.S.2d 702,440 N.E.2d 787
• Parties: , 440 N.E.2d 787 The PEOPLE of the State of New York, Respondent, v. Frederick J. ZIRPOLA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 702

454 N.Y.S.2d 702

57 N.Y.2d 706, 440 N.E.2d 787

The PEOPLE of the State of New York, Respondent, v. Frederick J. ZIRPOLA, Appellant.

Court of Appeals of New York.

Sept. 3, 1982.

Joseph R. Connelly and Rose H. Sconiers, Buffalo, for appellant

Richard J. Arcara, Dist. Atty. (John J. DeFranks, Asst. Dist. Atty., of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

On review of submissions pursuant to rule 500.2(b) of the Rules of the Court of Appeals (22 NYCRR 500.2), the order of the Appellate Division, 88 A.D.2d 758, 451 N.Y.S.2d 483, should be modified and the case remitted to the County Court, Erie County, for a hearing on exceptional circumstances (CPL 30.30, subd. 4, par. ).

The "exceptional circumstances" which may justify a delay in prosecution are explicitly "not limited to" cases where a continuance has been granted. The unavailability of a prosecution witness may be a sufficient justification for delay (cf. People v. Goodman, 41 N.Y.2d 888, 393 N.Y.S.2d 985, 362 N.E.2d 615), provided that the People attempted with due diligence to make the witness available (People v. Washington, 43 N.Y.2d 772, 401 N.Y.S.2d 1007, 372 N.E.2d 795; see CPL 30.30, subd. 4, par. cl. ). Whether the codefendant was at any time unavailable as a witness and what the People did to make him available are questions of fact on which the People have the burden of proof (People v. Berkowitz, 50 N.Y.2d 333, 428 N.Y.S.2d 927, 406 N.E.2d 783), but on which no hearing was held because People v. Osgood, 52 N.Y.2d 37, 436 N.Y.S.2d 213, 417 N.E.2d 507 and People v. Lomax, 50 N.Y.2d 351, 428 N.Y.S.2d 937, 406 N.E.2d 793 had not been decided when the speedy trial motion was heard. The People are, therefore, entitled to a hearing at which to show exceptional circumstances (People v. Warren, 81 A.D.2d 872, 439 N.Y.S.2d 41; cf. People v. Havelka, 45 N.Y.2d 636, 412 N.Y.S.2d 345, 384 N.E.2d 1269).

Accordingly, the matter should be remitted for such a hearing. If thereafter the motion is again denied, defendant's conviction should stand and an amended judgment should be entered reflecting that disposition, any appellate review of which will be limited to the speedy trial ruling. If, on the other hand, the speedy trial motion is granted, defendant's conviction should be vacated and the indictment should be dismissed.

COOKE, C. J., and JASEN, JONES, WACHTLER, FUCHSBERG and MEYER, JJ., concur.

GABRIELLI, J., taking no part.

On review of submissions pursuant to ...