New York Law Review

Tag: due diligence

  • People v. Osgood, 27 N.Y.3d 108 (2016): Due Diligence Requirement for Speedy Trial Exceptions Related to DNA Testing

    27 N.Y.3d 108 (2016)

    To exclude delays related to obtaining evidence, like DNA results, from speedy trial calculations under CPL 30.30(4)(g), the prosecution must demonstrate that they acted with due diligence to acquire the evidence.

    Summary

    The New York Court of Appeals held that the prosecution failed to exercise due diligence in obtaining a DNA sample from the defendant for comparison with DNA evidence found on a gun. The court found that the 161-day delay in obtaining and analyzing the DNA sample was not an excludable “exceptional circumstance” under CPL 30.30(4)(g), and the defendant’s speedy trial rights were violated. The court emphasized that the prosecution bears the burden of proving due diligence, and their inaction in pursuing readily available evidence, such as the DNA sample, was unjustified. This decision reinforces the requirement for prosecutors to proactively seek evidence to avoid speedy trial violations.

    Facts

    The defendant was charged with weapons offenses on November 29, 2007. DNA was found on a gun related to the charges, per a February 11, 2008, OCME report. The report stated that further analysis could be done upon submission of a sample from the defendant. Almost nine months after indictment, in May 2009, the prosecution moved for an order to obtain a DNA sample from the defendant for comparison. The defendant consented to an oral swab on June 5, 2009. The DNA report was produced November 13, 2009. The defendant moved to dismiss the indictment under CPL 30.30, arguing speedy trial violation.

    Procedural History

    The trial court denied the defendant’s CPL 30.30 motion. The Appellate Division reversed, holding that the 161-day delay between defendant’s consent to a DNA swab and production of the report was chargeable to the prosecution, as they had not exercised due diligence. The Appellate Division granted the CPL 30.30 motion and dismissed the indictment. The Court of Appeals affirmed the Appellate Division’s decision.

    Issue(s)

    1. Whether the prosecution’s delay in obtaining and analyzing the defendant’s DNA sample was an excludable “exceptional circumstance” under CPL 30.30(4)(g).

    Holding

    1. No, because the prosecution did not exercise due diligence in obtaining the defendant’s DNA sample.

    Court’s Reasoning

    The court applied CPL 30.30, which requires the prosecution to be ready for trial within six months for felony offenses. The court focused on CPL 30.30(4)(g), which allows for the exclusion of delay caused by “exceptional circumstances” in obtaining material evidence, but only if the prosecution exercised due diligence. The court stated, “To invoke the exclusion provided in CPL 30.30 (4) (g), however, the People must exercise due diligence in obtaining the evidence.” The court found that the prosecution’s delay in obtaining the DNA sample, particularly given the existing OCME report from February 2008, demonstrated a lack of diligence. The court emphasized that “the prosecution’s inability to proceed [must be] justified by the purposes of the investigation and credible, vigorous activity in pursuing it.” The court rejected the prosecution’s arguments that they were not aware of OCME’s findings and that they did not have an affirmative obligation to seek out the information, holding that CPL 30.30 is a People-ready rule and placing the burden on the prosecution to demonstrate diligence. The court noted that CPL 30.30 “was specifically intended ‘to address delays occasioned by prosecutorial inaction.’”

    Practical Implications

    This case underscores the importance of prosecutorial diligence in criminal cases, especially in cases involving scientific evidence. Prosecutors must proactively seek out and obtain all potentially relevant evidence in a timely manner. This decision has significant implications for how speedy trial calculations are made. Delay in seeking evidence that could have been readily obtained is likely to be counted against the prosecution under CPL 30.30. It may lead to more aggressive pre-trial discovery, earlier requests for DNA samples or other scientific analyses, and more diligent tracking of evidence and reports from laboratories. This case serves as a warning that failure to act promptly may result in dismissal of charges. Subsequent cases will likely apply this standard when evaluating the excludability of delays in obtaining various types of evidence.

  • Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40 (2015): Legal Malpractice and the Duty to Conduct Due Diligence

    26 N.Y.3d 40 (2015)

    An attorney’s duty of care in a legal malpractice case is defined by the scope of the attorney-client relationship; an attorney is not liable for malpractice if the attorney performed the duties agreed upon with the client, and did not otherwise assume a broader duty.

    Summary

    Nomura, an investment bank, sued Cadwalader, its law firm, for legal malpractice related to a mortgage securitization. Nomura alleged Cadwalader failed to properly advise it on REMIC qualification and perform due diligence regarding the underlying property appraisals. The Court of Appeals held that Cadwalader met its obligations by providing the agreed-upon legal advice regarding REMIC qualifications and that, absent a specific agreement or red flags, it had no duty to independently review the appraisals, as that was Nomura’s responsibility. The court emphasized the importance of the attorney-client relationship in defining the scope of the attorney’s duty, particularly in complex financial transactions where sophisticated clients often retain specific responsibilities. The court found that Cadwalader was entitled to summary judgment because Nomura failed to establish a breach of duty or proximate cause.

    Facts

    Nomura hired Cadwalader to advise on commercial mortgage-backed securities. Cadwalader provided advice on whether Nomura’s securitized commercial mortgage loans qualified as REMIC trusts. Cadwalader issued an opinion letter stating the D5 series was REMIC-qualified, relying on information provided by Nomura. The underlying dispute involved a $50 million loan secured by the Doctor’s Hospital of Hyde Park. The appraisal valued the hospital at $68 million. After the hospital defaulted, the D5 securitization trustee sued Nomura for breach of warranty, claiming the hospital’s property value was below the REMIC minimum. Nomura settled the federal action and subsequently sued Cadwalader for legal malpractice, alleging Cadwalader failed to properly advise it and conduct due diligence. Cadwalader did not review the appraisals for the D5 securitization.

    Procedural History

    Nomura sued Cadwalader for legal malpractice. The trial court denied Cadwalader’s motion for summary judgment. The Appellate Division modified the trial court’s order, dismissing the “failure to advise” claim but upholding the “due diligence” claim, but limited to a “red flag” arising from a document provided by Nomura. Both parties appealed. The Court of Appeals granted leave to appeal and answered the certified question in the negative.

    Issue(s)

    1. Whether Cadwalader was entitled to summary judgment on the claim that it failed to adequately advise Nomura regarding REMIC qualification.

    2. Whether Cadwalader was entitled to summary judgment on the claim that it failed to conduct sufficient due diligence regarding the underlying appraisals.

    Holding

    1. Yes, because Cadwalader sufficiently advised Nomura regarding REMIC qualification, and Nomura failed to establish a triable issue of fact regarding inadequate advice.

    2. Yes, because Cadwalader had no duty to independently review the appraisals, and the provided information did not constitute a “red flag” that should have triggered further review.

    Court’s Reasoning

    The court reiterated the standard for legal malpractice: breach of the duty of care and proximate cause resulting in actual damages. The court found that Cadwalader had provided appropriate legal advice regarding REMIC qualifications. Key to the court’s decision was the established attorney-client relationship and the parties’ understanding of Cadwalader’s role. Cadwalader’s duty was defined by the scope of its retention. The court found that Cadwalader was not retained to review appraisals. The court rejected the argument that the “highlights document” created a red flag, because it contained information consistent with Nomura’s representation. Expert testimony confirmed this was consistent with industry practice. The court emphasized that sophisticated clients like Nomura bear responsibilities and that legal malpractice actions must be based on a demonstrated breach of a specific duty owed to the client. The court found Nomura failed to present a triable issue of fact regarding either breach of duty or proximate cause.

    Practical Implications

    This case underscores the importance of clearly defining the scope of an attorney’s representation and the client’s responsibilities, particularly in complex financial transactions. It emphasizes that attorneys are not automatically liable for failing to perform tasks not specifically within the scope of their engagement. Attorneys should carefully document the scope of their services in engagement letters and other communications with clients. Legal malpractice claims require a showing of breach of duty, causation and damages. Furthermore, this case has implications for expert witness testimony. It suggests that expert opinions about general standards of care are not sufficient to create a triable issue of fact. In cases such as these, it is more crucial for expert opinions to address the actual understanding and agreement of the parties, not merely the theoretical responsibilities of an attorney.

  • People v. Handy, 20 N.Y.3d 663 (2013): Entitlement to Adverse Inference Charge for Destroyed Evidence

    People v. Handy, 20 N.Y.3d 663 (2013)

    When a defendant in a criminal case, acting with due diligence, demands evidence that is reasonably likely to be of material importance, and that evidence has been destroyed by the State, the defendant is entitled to an adverse inference charge.

    Summary

    Handy, a jail inmate, was convicted of assaulting a deputy sheriff. A video camera recorded part of the initial altercation leading to the assault, but the video was destroyed before trial pursuant to jail policy. Handy requested an adverse inference charge, arguing the video’s destruction prejudiced his defense. The trial court denied the request for the counts related to the initial altercation, but granted it for a later count. The New York Court of Appeals reversed, holding that Handy was entitled to an adverse inference charge because he requested potentially material evidence with reasonable diligence, and the State destroyed it. This decision emphasizes the State’s responsibility to preserve potentially exculpatory evidence and provides a remedy when that duty is breached.

    Facts

    Handy, an inmate, was involved in an altercation with Deputy Saeva after refusing to hand over non-regulation sandals and boxer shorts. Saeva claimed Handy initiated the fight, injuring Saeva’s hand. Deputy Schliff intervened to escort Handy away, and Schliff alleges that Handy kicked him, resulting in a thumb injury. A video camera recorded a portion of the initial altercation with Saeva. The video was destroyed per jail policy after 30 days, before Handy was indicted. Handy requested the video’s preservation, but the request was not specifically focused on video of the November incidents until trial.

    Procedural History

    Handy was charged with three counts of assault. He was acquitted of assaulting Saeva but convicted of assaulting Schliff. The trial court granted an adverse inference charge for one count, but not for the counts related to the initial altercation with Saeva. The Appellate Division affirmed the conviction, stating Handy’s claim that the video was exculpatory was speculative. The Court of Appeals reversed, ordering a new trial.

    Issue(s)

    Whether a defendant is entitled to an adverse inference charge when they requested evidence reasonably likely to be material, and that evidence was destroyed by the State?

    Holding

    Yes, because under New York law of evidence, a permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State.

    Court’s Reasoning

    The Court of Appeals declined to address the constitutional issues or align itself directly with Arizona v. Youngblood, focusing instead on the evidentiary question of whether an adverse inference charge was warranted. The court adopted the approach taken in Cost v. State, emphasizing that such a charge is appropriate when the defendant diligently requests material evidence that the State destroys. The court reasoned that an adverse inference charge mitigates the harm to the defendant caused by the loss of evidence, without necessarily terminating the prosecution. Moreover, the rule incentivizes the State to preserve evidence. The court stated, “[A]t least as important, the rule gives the State an incentive to avoid the destruction of evidence. It is surely desirable to raise the consciousness of State employees on this subject.” The Court analogized the adverse inference charge to a “missing witness” instruction. The Court found that the video, though directly relevant to the assault on Saeva (count one), was also relevant to the subsequent assault on Schliff (count two) because it would shed light on whether Handy was a violent aggressor. Therefore, the court concluded that Handy was entitled to the adverse inference charge for all counts. The dissent is not noted because there was none.

  • Georgia Malone & Co., Inc. v. Rieder, 19 N.Y.3d 511 (2012): Establishing the Necessary Relationship for Unjust Enrichment Claims

    Georgia Malone & Co., Inc. v. Rieder, 19 N.Y.3d 511 (2012)

    To succeed on a claim for unjust enrichment, a plaintiff must demonstrate that (1) the defendant was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought, and that the connection between the enriched party and the party conferring the benefit is not too attenuated.

    Summary

    Georgia Malone & Co. sued Rosewood Realty Group for unjust enrichment, alleging that Rosewood used Malone’s due diligence materials to close a real estate deal and collect a commission, without compensating Malone. The New York Court of Appeals affirmed the dismissal of the unjust enrichment claim, holding that Malone failed to establish a sufficiently direct relationship with Rosewood to sustain the claim. The Court emphasized that while privity is not required, the connection between the plaintiff and defendant must not be too attenuated, and the defendant must be aware of the plaintiff’s existence.

    Facts

    Malone, a real estate broker, performed due diligence work for potential buyers (the Rieders) of commercial properties. The Rieders ultimately did not purchase the properties from CenterRock. Subsequently, CenterRock provided Malone’s due diligence materials to Rosewood, another real estate broker. Rosewood then used these materials to facilitate a sale of the properties to a different buyer, earning a commission. Malone claimed that Rosewood was aware that the diligence materials were generated by Malone.

    Procedural History

    Malone sued Rosewood for unjust enrichment. The Supreme Court dismissed the claim. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal and affirmed the dismissal.

    Issue(s)

    Whether Malone established a sufficiently direct relationship with Rosewood to sustain a claim for unjust enrichment, given that Rosewood received the benefit of Malone’s work through an intermediary (CenterRock and the Rieders).

    Holding

    No, because the connection between Malone and Rosewood was too attenuated, and there were no direct dealings between them that would support an unjust enrichment claim.

    Court’s Reasoning

    The Court of Appeals emphasized that while privity is not required for an unjust enrichment claim, there must be a sufficiently close relationship between the parties. The Court cited Sperry v Crompton Corp., stating that the connection between the party conferring the benefit and the enriched party cannot be “too attenuated.” The court found that Malone’s relationship with Rosewood was too attenuated because Rosewood received the benefit of Malone’s work through CenterRock and the Rieders. There was no evidence of direct contact or dealings between Malone and Rosewood, and Rosewood was not aware that Malone expected to be compensated by Rosewood directly. The Court distinguished the case from situations where the defendant directly induced the plaintiff to perform services or knowingly exploited the plaintiff’s work. The Court reasoned that allowing Malone’s claim to proceed would create an unreasonable burden on commercial transactions, requiring parties to investigate the source of all information they receive. The dissent argued that Rosewood’s awareness that the diligence materials originated from Malone, a competitor, was sufficient to establish the necessary connection. Chief Judge Lippman, dissenting, stated, “[W]e indicated that ‘an awareness’ by defendant of plaintiffs existence was sufficient for an unjust enrichment claim.” (16 NY3d at 182). The dissent also argued that the majority’s ruling condoned willful ignorance, as Rosewood should have inquired about the circumstances of the materials’ transmission given Malone’s name on the documents.

  • Centro Empresarial Cempresa S.A. v. América Móvil, S.A.B. de C.V., 17 N.Y.3d 270 (2011): Enforceability of Releases in Fraudulent Inducement Claims

    Centro Empresarial Cempresa S.A. v. América Móvil, S.A.B. de C.V., 17 N.Y.3d 270 (2011)

    A general release bars claims of fraudulent inducement unless the plaintiff can identify a separate fraud from the subject of the release itself, and the plaintiff’s reliance on the alleged misrepresentations was justifiable.

    Summary

    Centro Empresarial Cempresa S.A. and Conecel Holding Limited sued Telmex México and its affiliates, alleging fraudulent inducement to sell their ownership interests in Conecel. The plaintiffs claimed the defendants provided false financial information, leading them to sell their shares at a lower value. The New York Court of Appeals held that the releases signed by the plaintiffs barred their claims because the alleged fraud fell within the scope of the release, and the plaintiffs, as sophisticated parties, failed to exercise due diligence to ascertain the true value of their shares. The court emphasized that a release is a complete bar to an action unless invalidated by fraud or other traditional defenses, and that the plaintiffs could not claim ignorance of the depth of the fiduciary’s misconduct.

    Facts

    Centro and CHL owned shares of Conecel. In 1999, they approached Slim about Telmex investing in Conecel. In March 2000, Telmex acquired a 60% indirect interest in Conecel through a Master Agreement, with plaintiffs retaining minority interests. Telmex managed accounting and provided quarterly financial statements. An “Agreement Among Members” allowed plaintiffs to negotiate an exchange of their shares under certain conditions. A “Put Agreement” gave plaintiffs the right to require Telmex to purchase their shares at a set price during specified periods. Plaintiffs alleged that Slim’s son-in-law, Hajj, falsely represented Conecel’s financial weakness, leading them to exercise a put option and later sell their remaining units at the floor price, based on allegedly false financial information. Releases were executed in connection with the sale.

    Procedural History

    In 2008, plaintiffs sued, alleging breach of contract, breach of fiduciary duty, fraud, and unjust enrichment. The Supreme Court denied the defendants’ motion to dismiss. The Appellate Division reversed, granting the motion, finding the claims barred by the general release. Two justices dissented, arguing fraudulent inducement. The plaintiffs appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the Members Release encompasses unknown fraud claims related to the valuation of the plaintiffs’ ownership interests.

    2. Whether the Members Release was fraudulently induced by the defendants, precluding its enforcement.

    3. Whether the plaintiffs justifiably relied on the defendants’ fraudulent statements in executing the release, given the fiduciary relationship between the parties and the plaintiffs’ knowledge of potential issues.

    Holding

    1. Yes, because the broad language of the release encompasses “all manner of actions…whatsoever…whether past, present or future, actual or contingent, arising under or in connection with the Agreement Among Members and/or arising out of…the ownership of membership interests in [TWE].”

    2. No, because the fraud described in the complaint falls squarely within the scope of the release; the plaintiffs failed to identify a separate fraud that induced the release itself.

    3. No, because the plaintiffs knew that the defendants had not supplied them with necessary financial information, and they chose to cash out their interests without demanding access to the information or assurances as to its accuracy.

    Court’s Reasoning

    The Court of Appeals reasoned that a valid release constitutes a complete bar to an action on a claim which is the subject of the release. The court stated that a release may encompass unknown claims, including unknown fraud claims, if the parties so intend and the agreement is “fairly and knowingly made.” The court emphasized that a party that releases a fraud claim may later challenge that release as fraudulently induced only if it can identify a separate fraud from the subject of the release. Here, the plaintiffs’ claim of fraudulent inducement was based on the same misrepresentations covered by the release. The court also found that, as sophisticated parties advised by counsel, the plaintiffs could not reasonably rely on the defendants’ assertions without conducting due diligence, especially given their awareness of potential issues and the adversarial nature of the relationship. The court quoted DDJ Mgt., LLC v Rhone Group L.L.C., 15 NY3d 147, 154 (2010), stating that “if the facts represented are not matters peculiarly within the party’s knowledge, and the other party has the means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he must make use of those means.” The court distinguished its holding from cases that suggested a stricter standard for releasing fiduciaries, clarifying that a sophisticated principal can release a fiduciary from claims when the principal understands the fiduciary is acting in its own interest and the release is knowingly entered into. The order of the Appellate Division was affirmed.

  • In the Matter of Steven B., 6 N.Y.3d 888 (2006): Discretionary Adjournments Based on Due Diligence

    In the Matter of Steven B., 6 N.Y.3d 888 (2006)

    A trial court has broad discretion in granting or denying adjournments, and a denial is not an abuse of discretion where the need for an adjournment arises from a lack of due diligence in preparing for a hearing.

    Summary

    This case addresses the scope of a trial court’s discretion in granting or denying a request for an adjournment. The New York Court of Appeals held that the Family Court did not abuse its discretion in denying the mother’s request for an adjournment. The need for the adjournment stemmed from the mother’s failure to diligently prepare for the hearing. Furthermore, the witnesses she intended to call were either unidentified or would provide cumulative testimony. This decision reinforces the principle that parties must diligently prepare their cases and that courts are not obligated to grant adjournments to remedy a party’s lack of preparation. The court emphasized that adjournments are a matter within the trial court’s sound discretion.

    Facts

    The Administration for Children’s Services (ACS) was involved in a case concerning Steven B. The mother, Makeba S., sought an adjournment during a hearing to call additional witnesses. The Family Court denied the adjournment request. The mother appealed, arguing that the denial was an abuse of discretion.

    Procedural History

    The Family Court denied the mother’s request for an adjournment. The Appellate Division affirmed the Family Court’s decision. The New York Court of Appeals granted leave to appeal and subsequently affirmed the Appellate Division’s order.

    Issue(s)

    Whether the Family Court abused its discretion by denying the mother’s request for an adjournment to call additional witnesses.

    Holding

    No, because the mother’s need for an adjournment was a result of her lack of due diligence in preparing for the hearing, and the witnesses she wished to call were either unidentified or would provide cumulative testimony.

    Court’s Reasoning

    The Court of Appeals relied on the established principle that granting or denying an adjournment is a matter within the trial court’s sound discretion, citing Matter of Anthony M., 63 NY2d 270, 283 (1984). The Court found no abuse of discretion in this case. The court emphasized that the mother’s need for the adjournment was directly linked to her failure to diligently prepare for the hearing. This lack of preparation was not a sufficient basis to compel the court to grant an adjournment. Furthermore, the court noted that the mother had not identified the specific witnesses she wished to call or demonstrated that their testimony would be anything other than cumulative. The court implicitly weighed the potential prejudice to the other parties and the efficient administration of justice against the mother’s request. The decision underscores the importance of attorneys adequately preparing their cases. The court stated: “the grant or denial of a motion for an adjournment for any purpose is a matter resting within the sound discretion of the trial court.”

  • People v. Pitts, 4 N.Y.3d 306 (2005): Clarifying the Standards for Post-Conviction DNA Testing

    People v. Pitts, 4 N.Y.3d 306 (2005)

    There is no time limit for bringing a post-conviction motion requesting DNA testing under CPL 440.30(1-a), and the burden is on the People, not the defendant, to establish the existence and availability of the evidence for testing.

    Summary

    This case clarifies the requirements for post-conviction DNA testing motions in New York. The Court of Appeals held that there is no due diligence requirement or time limit for bringing a motion under CPL 440.30(1-a). Further, the burden of proving the existence and availability of DNA evidence for testing rests on the People, not the defendant. The Court affirmed the denial of Pitts’ motion due to lack of reasonable probability of a more favorable verdict, but reversed and remitted Barnwell’s case, finding the People’s evidence regarding the evidence’s destruction insufficient.

    Facts

    In People v. Pitts, the defendant was convicted of rape. The victim waited two days before reporting the crime. No forensic evidence linked Pitts to the crime, and the defense expert explained this by the victim cleaning herself. Pitts sought post-conviction DNA testing. In People v. Barnwell, the defendant was convicted based on the victim’s identification. Barnwell sought DNA testing of hairs, semen, and a cigarette butt. The People claimed the evidence was destroyed.

    Procedural History

    In Pitts, the Monroe County Court denied the motion without a hearing, citing lack of due diligence and failure to show DNA evidence existed. The Appellate Division affirmed. In Barnwell, the Supreme Court denied the motion without a hearing, citing the People’s assertion of evidence destruction and lack of due diligence. The Appellate Division affirmed, requiring the defendant to show the evidence’s existence and availability.

    Issue(s)

    1. Does CPL 440.30(1-a) impose a due diligence requirement, limiting the time for bringing a post-conviction DNA testing motion?
    2. Does a defendant bear the burden of establishing that the specified DNA evidence exists and is available for testing?

    Holding

    1. No, because CPL 440.30(1-a) contains no language imposing a time limitation or due diligence requirement on motions for DNA testing.
    2. No, because it is the People who must demonstrate what evidence exists and whether it is available for testing, given their role as the evidence’s custodian.

    Court’s Reasoning

    The Court reasoned that the statute’s language doesn’t impose a time limit or due diligence requirement. The Court emphasized the importance of DNA testing in exonerating wrongfully convicted individuals, citing the legislature’s intent. “[T]hese statutory requirements—setting forth a standard different from that applied in other CPL article 440 motions to vacate convictions involving newly discovered evidence and expanding the class of defendants to whom testing is available—reflect the vital importance and potential exonerating power of DNA testing.” The Court placed the burden on the People to show what evidence exists because they are the gatekeepers of the evidence. Regarding Pitts, the Court affirmed denial because, given the victim’s delay in reporting and lack of initial forensic evidence, there was no reasonable probability of a more favorable verdict. Regarding Barnwell, the Court reversed because the People’s assertion of evidence destruction was insufficient; they needed to provide “reliable information” such as “an affidavit from an individual with direct knowledge of the status of the evidence or an official record indicating its existence or nonexistence.”

  • People v. Diaz, 97 N.Y.2d 109 (2001): Standard for Admitting Prior Trial Testimony When Witness is Unavailable

    97 N.Y.2d 109 (2001)

    When seeking to admit a witness’s prior trial testimony under CPL 670.10 because the witness is outside the state, the prosecution must demonstrate due diligence in attempting to secure the witness’s presence, including communicating with the witness in a language they understand.

    Summary

    Carlos Diaz was convicted of robbery after the trial court admitted the prior trial testimony of the victim, Oscar Leal, who had moved to Mexico. Leal, who testified with the aid of a Spanish interpreter in previous trials, was contacted by phone in English and asked to return for the fourth trial. He refused. The New York Court of Appeals reversed Diaz’s conviction, holding that the prosecution failed to exercise due diligence in securing Leal’s presence because they did not communicate with him in a language he fully understood, given his reliance on a Spanish interpreter at prior trials and the importance of his live testimony after two prior hung juries.

    Facts

    Oscar Leal was robbed. He identified Carlos Diaz as the robber. Diaz was arrested with Leal’s watch and $20. Leal testified against Diaz in three trials, all of which resulted in mistrials (two due to hung juries). Leal used a Spanish interpreter at these trials. Immediately after the third trial, Leal, a Mexican national, moved back to Mexico. The prosecution sought Leal’s presence for a fourth trial. They contacted him in Mexico via telephone and asked him to return to New York. The communications were conducted in English. Leal refused to return.

    Procedural History

    Following three mistrials, the People moved to admit Leal’s prior testimony at a fourth trial, arguing Leal was unavailable. The trial court granted the motion, finding due diligence. Diaz was convicted. The Appellate Division affirmed. One Appellate Division Justice dissented, granting leave to appeal to the New York Court of Appeals. The Court of Appeals reversed the conviction and ordered a new trial.

    Issue(s)

    Whether the prosecution exercised due diligence, as required by CPL 670.10, in attempting to secure the presence of a witness who resided outside the state, when the communications to secure the witness’s attendance were conducted in a language the witness did not fully understand.

    Holding

    No, because under CPL 670.10, due diligence requires that the prosecution communicate with a witness in a language the witness fully understands when attempting to secure their presence at trial, especially when the witness has previously required an interpreter and their live testimony is crucial.

    Court’s Reasoning

    The Court of Appeals emphasized that CPL 670.10 is a limited exception to the Sixth Amendment right of confrontation. To prevent this exception from swallowing the rule, the prosecution must demonstrate genuine effort, not indifference, in securing the witness’s live testimony. The court highlighted the significance of Leal’s demeanor to the jury, especially given the prior hung juries. Because Leal had used a Spanish interpreter at previous trials, the Court reasoned that communicating with him in English was insufficient to demonstrate due diligence. The court noted that the ADA’s statement that Leal “appeared to understand me at some point” was insufficient to establish clear understanding. The court stated: “Using understandable language to get the witness to the trial is as important as using understandable language to question the witness at the trial.” The dissent argued that there was sufficient evidence that Leal had some proficiency in English, and thus the lower court’s finding of due diligence should not be disturbed. The majority countered that it is the *level* of Leal’s comprehension that matters. The Court concluded that a “trial on paper should be conducted only as a last resort” and the prosecution must take reasonable steps to ensure the witness’s presence.

  • People v. Torres, 88 N.Y.2d 928 (1996): Exclusion of Delay for Defendant Avoiding Apprehension

    People v. Torres, 88 N.Y.2d 928 (1996)

    The prosecution is not required to demonstrate due diligence in locating a defendant to exclude periods of delay from speedy trial calculations when the defendant is actively attempting to avoid apprehension or prosecution.

    Summary

    Defendant was arrested for drug possession, failed to appear for arraignment, and a bench warrant was issued. After his re-arrest, he moved to dismiss the charges on speedy trial grounds. The New York Court of Appeals held that the Appellate Division erred in requiring the People to demonstrate due diligence in locating the defendant during the period he was a fugitive because the trial court had found he was actively avoiding apprehension. The case was remitted to the Appellate Division to review that finding and other relevant factual issues.

    Facts

    Defendant was arrested on March 27, 1989, and indicted for criminal possession of a controlled substance. He was released on his own recognizance but failed to appear for arraignment on the indictment on June 13, 1989, resulting in a bench warrant for his arrest. A detective was assigned to the warrant on July 5, 1989. The detective periodically checked the computer for information and received a photograph of the defendant on July 24, 1989. The detective investigated two addresses provided by the defendant and discovered that neither was valid. On June 27, 1990, defendant was arrested while assisting a co-conspirator attempting to smuggle cocaine. He later pleaded guilty to a federal indictment.

    Procedural History

    While incarcerated on federal charges, defendant moved to dismiss the state charges on speedy trial grounds; the Supreme Court denied the motion. A jury convicted defendant of criminal possession. The Appellate Division held the appeal in abeyance and remitted the matter to the Supreme Court for a de nova hearing on the speedy trial motion. On remand, the Supreme Court determined defendant’s speedy trial rights had not been violated, because he had been avoiding apprehension and the People had exercised due diligence in attempting to locate him. The Appellate Division reversed, finding the People had failed to exercise due diligence, and granted defendant’s motion to dismiss. The Court of Appeals reversed the Appellate Division’s order.

    Issue(s)

    Whether the 73-day period from July 24, 1989, to October 6, 1989, should be charged to the People in calculating the speedy trial period, given that the People allegedly failed to exercise due diligence in locating the defendant.

    Holding

    No, because pursuant to CPL 30.30(4)(c), the People need not exercise due diligence in attempting to locate a defendant who is attempting to avoid apprehension or prosecution.

    Court’s Reasoning

    The Court of Appeals focused on CPL 30.30 (4)(c), which addresses excluding periods of delay from the time chargeable to the People when a defendant’s location is unknown and the defendant is attempting to avoid apprehension or prosecution. The Court stated, “The People need not exercise due diligence in attempting to locate a defendant who is attempting to avoid apprehension or prosecution” (People v. Luperon, 85 N.Y.2d 71, 80, n. 3). The Court found that the Appellate Division erred in imposing a due diligence requirement on the prosecution. The Court remitted the case to the Appellate Division, instructing it to review the Supreme Court’s finding that the defendant had attempted to avoid apprehension or prosecution, along with any other relevant factual issues.

  • People v. Luperon, 85 N.Y.2d 71 (1995): Due Diligence and Speedy Trial Rights for Absent Defendants

    85 N.Y.2d 71 (1995)

    To exclude the period when a bench warrant is outstanding from speedy trial calculations under CPL 30.30(4)(c), the prosecution must demonstrate due diligence in attempting to locate the defendant during that entire period; a lack of diligence during any portion of the period renders that portion non-excludable.

    Summary

    Luperon was charged with attempted murder. After his release, he failed to appear in court, and a bench warrant was issued. More than 15 months later, Luperon moved to dismiss the charges, arguing the People’s statement of readiness was untimely. The court addressed whether the entire period the bench warrant was outstanding was excludable, even though there was a 69-day gap before efforts to execute the warrant began. The Court of Appeals held that the 69-day period was not excludable because the police’s subsequent efforts did not retroactively excuse their prior inaction. Because the delay exceeded the statutory limit, the indictment should have been dismissed.

    Facts

    Luperon was arraigned on a felony complaint for shooting his landlord on August 2, 1989, and released on August 4. He failed to appear on September 14, 1989, and a bench warrant was issued. He was arrested on unrelated charges on October 16, 1989, and released again on October 20, 1989, while the Grand Jury had not acted. He was indicted on December 8, 1989, but never received notice of his indictment or an arraignment date. An ex parte arrest order was issued on December 19, 1989. Luperon was not located until October 5, 1990, after being spotted by his former landlady. The People declared readiness on October 26, 1990.

    Procedural History

    Defendant moved to dismiss the indictment, alleging the People were unready for 451 days. The trial court denied the motion after a hearing. Luperon was convicted of first-degree assault and second-degree criminal possession of a weapon. The Appellate Division affirmed, finding the police demonstrated diligence. The Court of Appeals granted permission to appeal.

    Issue(s)

    Whether the People can exclude the entire period a bench warrant is outstanding under CPL 30.30(4)(c) when there was a period of 69 days between the issuance of the warrant and the start of efforts to execute it.

    Holding

    No, because a showing of diligent efforts to execute the bench warrant is a prerequisite to the application of the statutory exclusion. The 69 days of delay between the warrant’s issuance and assignment for enforcement are not excludable.

    Court’s Reasoning

    CPL 30.30(4)(c) excludes the period a bench warrant is outstanding if the defendant is absent or unavailable, defined as location unknown with attempts to avoid apprehension, or presence for trial cannot be obtained with due diligence. The Court stated a showing of diligent efforts to execute the warrant is a prerequisite to applying the exclusion. While diligence is a mixed question of law and fact, the Court may inquire whether the fact finder’s conclusions are supported by the record.

    The Court rejected the People’s argument to excuse the pre-assignment delay for “reasonable administrative delay.” The Court reasoned that the “due diligence” standard is flexible enough to consider processing demands where warranted by the facts. The Court clarified they were not holding that time spent processing a warrant is always chargeable to the People.

    The Court held because the People failed to offer any basis for excluding the 160 days of delay during other periods and the 69-day delay between the warrant issuance and assignment, the total unexcused delay exceeded the statutorily permitted time. The Court noted that “[t]hose officials are bound by their oaths of office to make all reasonable efforts to enforce judicially issued warrants.”