United States v. Sanchez, 73 Cr. 48.
| Decision Date | 25 March 1974 |
| Docket Number | No. 73 Cr. 48.,73 Cr. 48. |
| Citation | 392 F. Supp. 507 |
| Parties | UNITED STATES of America v. Andre SANCHEZ et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Paul J. Curran, U. S. Atty., for plaintiff. By: Pamela Davis, Asst. U. S. Atty., of counsel.
Poletti, Freidin, Prashker, Feldman & Gartner, New York City, for defendant Andres Sanchez. By: Paul R. Grand, New York City, of counsel.
Legal Aid Society, for defendant Arturo Sanchez. By: Thomas Concannon, New York City, of counsel.
Defendants Andre Sanchez and Arturo Sanchez have moved to dismiss the indictment for failure to comply with the "Plan for Achieving Prompt Disposition of Criminal Cases" (hereinafter the "Plan") promulgated pursuant to Rule 50(b) of the Federal Rules of Criminal Procedure.
The indictment was filed on January 15, 1973, charging the defendants with conspiracy to distribute narcotics. On May 14, 1973, the government filed a Notice of Readiness for Trial and the Court fixed August 1, 1973 as the date of trial. On July 30, 1973, the Assistant United States Attorney applied for an adjournment on the ground that the government's principal witness, Patrolman Charles Martinez, had sustained severe injuries as the result of an accident on July 20, 1973, and was unavailable to testify. The application was granted and a new trial date set for late August 1973. Later, the trial was rescheduled for October 15, 1973.
On October 10, 1973, the Assistant United States Attorney again applied for a postponement due to the unavailability of Patrolman Martinez. The defendant Andre Sanchez opposed the application, on the ground that there was no assurance of the witness becoming available within a reasonable period as prescribed in Rule 5(c)(i) of the Plan, and also cross moved to dismiss the indictment. Both motions were heard on October 12, 1973, but the formal decision denying them was unfortunately never docketed.
Because of the Court's involvement in two previously scheduled and unexpectedly lengthy trials, in one of which the attorney for Andre Sanchez represented the plaintiff, the case was not called to trial again until March 21, 1974. However, on January 22, 1974, in response to an inquiry from the Court, the Assistant United States Attorney said that the government was prepared to go to trial the following day before Judge Bauman. In late February 1974, both defendants again moved to dismiss the indictment for failure to comply with the Plan, and a hearing was held on this motion on March 22, 1974.*
The defendants advance alternative arguments in support of the motion to dismiss. On the one hand they argue that there is no reasonable likelihood that the government's principal witness will become available to testify. This argument the government answers by stating that Patrolman Martinez is presently available to testify and that the government is ready to go to trial. The defendants then claim that if Patrolman Martinez is presently available, he has also been available during the past six to eight months and that the earlier adjournments were therefore not justified. It was to this question that the hearing was addressed.
The only person who testified at the hearing was Patrolman Martinez himself. He stated that following his accident on July 20, 1973, he was placed on sick leave until August 7, 1973, when he returned to work. He said that he was assigned to light duty until September 13, when he had another accident, causing him to be absent from work until December 3, 1973. During this period and continuing to the present time, his main symptoms were intermittent nausea and vertigo, but he was nonetheless able to drive a car. He said that the nausea would precede the vertigo and that if he happened to be driving, he would pull over to the side when he felt the nausea and wait 10 or 15 minutes until the vertigo passed. He was not aware that the trial of this case had been adjourned on his account, and he had not been called at home by the Assistant United States Attorney in either August or October to discuss his availability for trial. However, the Assistant United States Attorney represented at the hearing that both times before requesting a postponement she had called Patrolman Martinez' office, had been told he was on sick leave, and had discussed his symptoms with the Police Surgeon. In addition to his testimony, Patrolman Martinez' medical records were introduced, showing that the July 20 accident had caused temporary blackness of vision in his left eye in addition to the dizziness and that the accident of September 13 had caused a cerebral concussion. An eye examination of November 9, 1973 indicated that there was no longer a problem with his vision.
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Lewis v. State
...a continuance due to the hospitalization of a prosecution witness was appropriate and the delay was justifiable. See United States v. Sanchez, 392 F.Supp. 507 (S.D.N.Y.1974); Wade v. State, supra, at 1060. Thus, the ten-month delay from Blake's arrest until November 1, 1982, is chargeable e......