Legal Question in Criminal Law in New York

Generally, the prosecutor must show some effort to apprehend a defendant who warrants. Especially where he is not hiding but is living in the open under his name. The below sections are from a book I am writing. I hope this information proves helpful. Finally, the State is only moving forward on the bail jumping because they cannot prove the assault case now. The prosecution would have to find the victim and hope he remembers what happened. It is very difficult to prove a case from 15 years ago.

Excludable Time � Absence or Unavailability of Defendant [CPL 30.30(4)(c)(i)]

The period of delay resulting from the absence or unavailability of the defendant is not chargeable to the People. �A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence. A defendant must be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence� CPL 30.30(4)(c)(i).

Defendant Merely Being in Another Jurisdiction Does not Constitute Absence

�Absent a demonstration of prosecutorial diligence in locating the defendant and/or securing his presence, the mere fact that the defendant was in another jurisdiction when the action was commenced does not entitle the People to exclude the time.� People v. Wiggins, 194 A.D.2d 840, 841 (3rd Dept. 1993).

Law Enforcement�s Knowledge of Defendant�s Whereabouts Imputed to District Attorney

Law enforcement�s knowledge of the defendant�s whereabouts �would, of course, be imputed to the District Attorney's office. A defendant ought not be penalized because of any inadequacy of internal communication within the law enforcement establishment.� People v. McLaurin, 38 N.Y.2d 123, 126 (1975).

Excludable Time � Exceptional Circumstances [CPL 30.30(4)(g)]

�Among the periods of time that are, upon sufficient proof, excludable are periods of delay occasioned by exceptional circumstances.� People v. Meyers, 114 A.D.2d 861 (2nd Dept. 1985).

Pursuant to CPL � 30.30(4)(g)(i), delay resulting from a continuance granted at the request of a district attorney constitutes exceptional circumstances and therefore is excludable if �the continuance is granted because of the unavailability of evidence material to the people�s case, . . . 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.�

Notably, �[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 Smietana, 98 N.Y.2d 336, 341 (2002)

The Court of Appeals did note, however, that the legislative intent of CPL � 30.30 is to prevent prosecutorial inaction and therefore, stated that application of this exclusion is permitted �only when the People for practical reasons beyond their control cannot proceed with a legally viable prosecution.� Id (citations omitted). That is, to invoke this exception, the People must demonstrate �credible, vigorous activity� in pursuing their investigation. People v Washington, (1977).

John Campbell, Esq.

White Plains, NY

914-837-1800

[email protected]

www.EZLawz.com