People v. Spadafora

131 A.D.2d 40, 519 N.Y.S.2d 979, 1987 N.Y. App. Div. LEXIS 48592
CourtAppellate Division of the Supreme Court of the State of New York
DecidedOctober 22, 1987
StatusPublished
Cited by4 cases

This text of 131 A.D.2d 40 (People v. Spadafora) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Spadafora, 131 A.D.2d 40, 519 N.Y.S.2d 979, 1987 N.Y. App. Div. LEXIS 48592 (N.Y. Ct. App. 1987).

Opinion

OPINION OF THE COURT

Sullivan, J.

Defendant, a New York City police officer charged with having accepted money over a period of 4 Vi years from the operator of two Chinatown gambling locations, was convicted, after a jury trial, of one count of bribe receiving in the second degree, and sentenced to an indeterminate term of imprisonment of from 1 to 3 years. He cites as error the denial of his speedy trial motion, brought pursuant to CPL 30.30 and 210.20 (1) (g), more than nine months after his arraignment and before the People had ever answered ready for trial. The claim has merit, since, as this record makes clear, the People could not justify their failure to declare their readiness to proceed to trial within the statutory time limit. Accordingly, we reverse the conviction, grant the motion and dismiss the indictment.

CPL 30.30 provides generally that the People must be ready to proceed to trial within six months of a defendant’s indictment. Certain time periods, however, are specifically excepted from the calculation of the six months. CPL 30.30 (4) (a), for example, provides for the making of pretrial motions and the exclusion of the time during which they are being considered by the court. CPL 30.30 (4) (g) excludes "periods of delay occasioned by exceptional circumstances”, including, but not limited to, delay resulting from a continuance granted at the People’s request "because of the unavailability of evidence material to the [P]eople’s case”, provided that the prosecutor "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” of time.

After defendant’s arraignment on August 22, 1984, the case was adjourned for the making of motions. Since defendant’s motions were disposed of by decision dated November 9, 1984, the time period from August 22 to November 9, 1984 is excludable, leaving seven months of delay for which the People must account. As is conceded, none of this delay is chargeable to defendant, who made no further motions, other [42]*42than his dismissal motion based on the alleged CPL 30.30 violation, and was continuously ready for trial.

The People argue that the seven-month delay is excusable under the "exceptional circumstances” allowance of CPL 30.30 (4) (g) since it was occasioned by the unavailability of a material witness, Louis Jon. In support of this position, the People point to their efforts to locate Jon, which they reasonably believed would be successful within a reasonable period of time, and specifically argue that these efforts had been vigorous, credible and steadfast. A review of the record, however, shows that this period of delay cannot be excluded under any reasonable interpretation of CPL 30.30 (4) (g).

After the court subsequently advised the parties on December 10, 1984 that the case was ready for trial, the prosecutor, on February 4, 1985, noting that "there is a witness that we have been unable to locate so far”, acknowledged that the People were not ready. The case was adjourned to March 4, 1985. When the case was called on that date, the court itself put the matter over to the April Term.

On April 17, 1985, the People, citing their preference to bring a companion case to trial first, conceded that "there is an unavailable witness in this case” and requested a further adjournment. On May 29, 1985, the People again requested an adjournment because of the unavailable witness. On June 10, 1985, defendant, invoking the speedy trial rule, moved to dismiss the indictment. In opposition, the People cited the unavailability of the witness, Louis Jon, whose "whereabouts [had been] unknown” since "at least” the court’s November 9, 1984 decision on defendant’s pretrial motions. The People requested a hearing on the witness’s unavailability and the diligence and good faith of their efforts to locate him.

Before the hearing began, some five months later, the court, on the basis of the Grand Jury minutes, determined that Jon’s testimony was indeed material. The People presented two witnesses who testified about the ongoing gambling activities in the Chinatown section of Manhattan. Sidney Koe, who was closely associated with Benny Eng, said to be the overseer of the Hip Sing Association and the "Boss of Chinatown”, ran a gambling operation at both 9 and 15 Pell Street. Jon had worked for Koe at those establishments. Police department intelligence indicated that Koe, who was "like a son”, was Eng’s right-hand man.

Sometime after July 25, 1984, the date on which he testified [43]*43before the Grand Jury in this matter, Jon had a conversation with members of the prosecutor’s office. He informed them that he had told Eng of his cooperation in the investigation of the Chinatown gambling enterprises and the police corruption that went with it. He had also informed Eng that he had testified against certain police officers. Eng allegedly told Jon that, while he should not have testified against police officers, he would be "forgiven” nonetheless, but that he should leave the jurisdiction. It should be noted that an earlier informant, whose tip had sparked the Chinatown investigation, had already been murdered. In any event, Jon was last heard from on July 30, 1984.

When Jon did not appear at defendant’s departmental hearing on September 11, 1984, the search to find him began. Members of Jon’s family, including his brothers and sisters, as well as friends and associates and the director of security for the Off-Track Betting Corp., Jon’s, former employer, were interviewed. Investigators spoke to both Eng and Koe, and the leader and members of the "Flying Dragons”, a Chinese youth gang, as well as the attorney who had represented Jon. A constant vigil was kept for him in Chinatown, and his accounts with Mastercard, Visa, Citibank and the New York Telephone Company monitored. Contact was made with police authorities in Boston, Miami, Saratoga, Philadelphia, the Dominican Republic and the Republic of China.

All of these efforts had proven unsuccessful, although, based on some limited activity in his accounts, there was reason to believe that Jon was still alive. No records were kept concerning the efforts to find Jon and, for that reason, specific dates and documentation concerning the investigation could not be produced. The diligence of the investigation, however, is not in dispute on this appeal.

In April or May of 1985, shortly before the case against Koe had been scheduled for trial, Koe’s attorney approached the prosecutor about a possible plea bargain for his client. The prosecutor stated that he would consent to a plea of guilty to a class A misdemeanor to cover the felony charge and forego a recommendation of a jail sentence if Koe could produce Jon for the upcoming trials. While Koe’s attorney gave no indication that Koe would, or could, produce Jon, the prosecutor was optimistic, nonetheless, since he knew that the offer would be communicated to Koe, who, because of his relationship to Eng, could count on Eng to produce Jon. In fact, Koe did not produce Jon and went to trial himself in November of 1985.

[44]*44Jon’s whereabouts continued to be unknown even at the time of the hearing. On November 13, 1985, the day before its commencement, however, a west coast informant reported that he had been contacted by Jon, who expressed a desire to return to New York as soon as the cases against Koe, defendant and the other police officers were completed.

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Bluebook (online)
131 A.D.2d 40, 519 N.Y.S.2d 979, 1987 N.Y. App. Div. LEXIS 48592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-spadafora-nyappdiv-1987.