Papers read on this Motion: Defense Motion, dated December 3, 2021 1 People’s Opposition, dated January 20, 2022 2 Court file for Defendant 3 Executive Orders signed by former Governor Cuomo 4 Executive Orders and mandates promulgated by the Office of Court Administration (OCA) and Judge Marks 5 Decision Defendant moved for dismissal of all charges, with prejudice, pursuant to CPL §§170.30(1)(e) and 210.20(1)(g) in that she was denied her right to a Speedy Trial within the meaning of CPL §30.30(1)(a) and the United States Constitution. The motion was returnable on January 14, 2022. The People filed opposition on January 20, 2022. Over Defendant’s objection, the Court considered the People’s papers. Time Frames: The Defendant was arraigned on a felony complaint on January 15, 2020. Per the court’s file, the case was adjourned on consent to January 24, 2020. Defendant was to retain private counsel during that time frame. On January 24, 2020, Mr. Terino advised the court that he was the attorney on this case and the matter was adjourned at the request of the People to February 14, 2020. The People certified compliance on January 29, 2020. On February 14, 2020, defense waived the case to the grand jury without a speedy trial waiver. On March 7, 2020, former Governor Cuomo declared a State of Emergency as a result of COVID 19 and its deadly spread throughout the State. Thereafter, COVID 19 began impacting court functions and on March 18, 2020 the sitting grand juries in Nassau County stopped hearing new business. They were sent home by March 20, 2020. On March 20, 2020, former Governor Cuomo, having declared a state of emergency for New York State, issued Executive Order 202.8 which suspended timeframes under Criminal Procedure Law (CPL) Article 30 for criminal cases. That Order remained in effect until October 4, 2020 when the Governor lifted the CPL Article 30 suspensions for criminal cases. In October 2020, County Court had two grand juries empaneled to address the backlog created by COVID 19 as it related to incarcerated defendants and individuals charged with violent felonies. On November 13, 2020, with COVID 19 cases again spiking in New York, the empaneling of new grand juries was again suspended by OCA. Nassau County was allowed to continue to empanel two grand juries through December 28, 2020 to hear cases associated with CPL §180.80 demands and/or acts of violence or other pressing matters. On December 30, 2020, former Governor Cuomo issued Executive Order 202.87, again suspending CPL §30.30 “‘to the extent necessary to toll any time periods contained therein for the period during which the criminal action is proceeding on the basis of a felony complaint through arraignment on the indictment…”. On January 7, 2021, Nassau County was authorized to empanel a single grand jury per month. On May 6, 2021, former Governor Cuomo issued Executive Order 202.106 which re-instated CPL §30.30 beginning on May 24, 2021. On May 20, 2021, Nassau County began empaneling two grand juries for all purposes. On August 31, 2021, the court, sua sponte, filed and served a Motion to Terminate Prosecution pursuant to CPL §180.85, returnable October 7, 2021. On November 22, 2021, the People consented to the termination of prosecution. This defense motion followed.1 Argument: In general, defense argues that speedy trial has run on this matter based on the re-instatement of CPL §30.30 as of October 5, 2020. As of the filing of this motion, there is still no indictment in this matter. The People’s argument is two-fold: (1) that 30.30 has not run as Executive Order 202.67, issued on December 30, 2020, reinstated CPL §30.30 suspension for felony complaints not yet indicted and (2) a necessary witness in the matter is not available as a result of a medical issue and as such there is an “exceptional circumstance” tolling of CPL §30.30. Analysis: January 15, 2020 to January 24, 2020: adjournment on consent; no time charged to the People. January 24, 2020 to February 14, 2020: People’s adjournment; 21 days charged to the People. February 14, 2020 to March 20, 2020: no action by the People in the Grand Jury; 35 days charged to the People. March 20, 2020 to October 4, 2020: Executive Order suspension of CPL Article 30; no time charged to the People. October 5, 2020 to December 30, 2020: Although Nassau County Court did have sitting grand juries, the backlog of cases that needed to be heard within the grand jury was immense. The issue presented to this Court is whether an “exceptional circumstance” pursuant to CPL §30.30(4)(g) existed, which would allow for the tolling of speedy trial time. It is without dispute that, “[t]here is no precise definition of what constitutes an exceptional circumstance under CPL §30.30 (4) (g),” since it is impossible to “anticipate every situation that might warrant tolling of the speedy trial time period.” People v. Price, 14 NY3d 61, 64 (2010), quoting, People v. Smietana, 98 NY2d 336, 341 (2002). What the courts must be most mindful of is the inaction of the People while a charge is pending against a defendant. The Court of Appeals has expressed a desire, not mandated by statute, that the People seek continuances from the Court when they cannot proceed on a particular case. Price, 14 NY3d @ 64. However, that desire must be balanced against the realities of a particular jurisdiction and the reasons behind the delay. Having oversight of each sitting grand jury during this pandemic, the Court is very aware of the issues presented to both the People and defense attorneys who wanted their cases presented to a grand jury. The Court credits the People’s statement, with supporting documentation, that every minute of time within the grand jury was being utilized once grand juries reconvened in Nassau County. The Court is likewise aware that CPL §180.80 demands, incarcerated individuals who had felony hearings and other acts of violence were given priority within the grand jury. Without recounting the details of the Covid 19 pandemic which has gripped the Country and was particularly virulent in New York State, there was a very short time frame in Nassau County between the initial lifting of Article 30 tolling (October 4, 2020) and the rise of cases leading to another delay in returning to operations at pre-pandemic levels within the County. By November 16, 2020 the courts were back to limited capacity, trials again had been shut down and many people were working from home. Realizing that another spike was about to grip the State with the pending holiday season, former Governor Cuomo instituted a more limited tolling of Article 30. Namely, any case not yet indicted would not be subject to speedy trial calculations until after an Indictment was obtained. This tolling went into effect on December 30, 2020. The issues related to the spike in Covid, the reduced capacity in courthouses and the limited availability of grand juries was not a mystery. Any individual could pick up a newspaper or search the internet for this information and been fully informed of the situation. Defense attorneys certainly had access to this information and would not be “surprised” to learn that their clients’ cases were not being presented to the grand jury. As such, for this time frame, this Court does not find that the People should have sought an extension, on notice to defense, that this case would not be presented to the Grand Jury due to an exceptional circumstance. It was obvious. Based on this analysis, the Court finds that the time frame from October 5, 2020 to December 30, 2020 is excludable under an “exceptional circumstance” tolling of CPL §30.30. No time charged to the People. December 30, 2020 to May 23, 2021: Executive Order suspension of CPL §30.30 “to the extent necessary to toll any time periods contained therein for the period during which the criminal action is proceeding on the basis of a felony complaint through arraignment on the indictment…” (Executive Order 202.87). No time charged to the People. May 24, 2021 to December 3, 2021: The question for the court is whether any of this time is excludable. For this analysis, the allegations within the felony complaint becomes relevant. The defendant is alleged to have taken advantage of an elderly person while acting in the capacity as a home health aide. In excess of $50,000 is alleged to have been stolen from her by withdrawing money from her account, writing/cashing fraudulent checks and making online purchases. Our elderly population is the most vulnerable and were impacted the hardest by the Covid 19 pandemic. The People have advised that even though the complainant has been vaccinated, her general health issues, including congestive heart failure, make it dangerous, if not deadly, for her to be potentially exposed to the Covid 19 virus. CPL §30.30(4)(g) states that an “exceptional circumstance” continuance lies if “(i) the continuance is granted because of the unavailability of evidence material to the people’s case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period…”. Medical excuses have been found to be acceptable reasons for the court to find an exceptional circumstance toll. See, People v. Moore, 234 AD2d 567 (2nd Dept 1996); People v. Woody, 24 AD3d 1300 (4th Dept 2005). Additionally, courts have found that the unavailability of an individual for medical reasons who is NOT the material witness but nevertheless impacts the availability of the material witness, is an exceptional circumstance that allows for tolling. See, People v. Rodriguez, 212 AD2d 368 (1st Dept 1995) lv. denied 85 NY2d 913 (1995); People v. Lee, 15 Misc.3d 1137(A) (Crim. Ct. New York County 2007); People v. Massey, 2017 NYLJ Lexis 3028 (Kings County 2017). The elderly complainant in this case is a necessary witness. She appears cooperative based on the People’s papers. Last summer when the Covid numbers were low and the complainant was vaccinated, she could not come to the grand jury because her son, who was her mode of transportation, was recovering from spinal surgery he had in June 2021. By November 2021, Omicron was over-sweeping the country and Nassau County’s positive case numbers were on the rise. It is only recently that the extremely high positivity rate has started to decrease in Nassau County. Based on this analysis, the Court finds that the time frame from May 24, 2021 to December 3, 2021 is excludable under an “exceptional circumstance” tolling of CPL §30.30. Conclusion: A total of fifty-six (56) days are chargeable to the People. However, this case has been the subject of a termination of prosecution order pursuant to CPL §180.85. Accordingly, the People will need to advise the Court of their intention to seek an indictment in this matter so that the sealing which was instituted pursuant to CPL §160.50 may be stayed “for a reasonable period not to exceed thirty days to permit the people an opportunity to pursue such an indictment.” CPL §180.85(7). Wherefore the defendant’s motion is denied. SO ORDERED. Dated: February 2, 2022
