Opinion
Argued September 18, 1997
Decided October 21, 1997
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered July 2, 1996, which (1) reversed, on the law, an order of the Supreme Court (Carol Berkman, J.), entered in New York County, granting a motion by defendant to dismiss the indictment on the ground that he was denied his right to a speedy trial, and (2) reinstated the indictment.
Defendant was indicted for assault in the second degree and criminal possession of a weapon in the fourth degree. After a series of delays, defendant moved to dismiss the indictment on speedy trial grounds. The People asked the court to exclude 43 days of delay on the ground that the arresting officer was on maternity leave.
Supreme Court granted the motion, concluding that the mere allegation that a witness is pregnant, absent the submission of additional facts, is insufficient to render the witness unavailable under CPL 30.30 (4) (g), since pregnancy per se is not a disability.
The Appellate Division concluded that the 43 days of the arresting officer's unavailability due to maternity leave were excludable delay pursuant to CPL 30.30 (4) (g); that, consequently, the People answered ready within the statutory period and the motion to dismiss should have been denied; that the People successfully met their burden of establishing that the officer was an unavailable material witness, whom they reasonably believed would become available soon, and whom they were diligent in attempting to produce at trial; that they demonstrated that her testimony was critical in establishing the chain of custody of crucial physical evidence; that she was actually unavailable, based upon the date she gave birth and the necessary period of recovery immediately thereafter; that they were diligent in answering ready prior to the witness' unavailability; that during the period of unavailability, they diligently kept themselves and the court apprised of her expected return date; and that, accordingly, that constituted due diligence.
In the Court of Appeals, defendant maintained that the trial court correctly determined that the arresting officer's absence did not constitute an "exceptional circumstance", and that his rights to due process and a speedy trial were violated by the more than 44 months of pretrial appellate delay that occurred.
People v Womack, 229 A.D.2d 304, affirmed.
Lawrence T. Hausman, New York City, and Daniel Greenberg for appellant.
Robert M. Morgenthau, District Attorney of New York County, New York City ( Morrie I. Kleinbart and Norman Barclay of counsel), for respondent.
Order affirmed for reasons stated in the memorandum at the Appellate Division ( 229 A.D.2d 304), noting additionally that the defendant's appellate delay contention is not a matter properly presented to this Court ( see, CPL 470.15; 470.35 [2] [a]).
Concur: Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY.