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THE PEOPLE DEMONSTRATED THE EXERCISE OF DUE DILIGENCE IN ATTEMPTING TO LOCATE THE DEFENDANT; DEFENDANT’S MOTION TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court on the People’s appeal, determined the indictment should not have been dismissed on speedy trial grounds because the People demonstrated the exercise of due diligence in attempting to locate the absent defendant:

In computing the time within which the People must be ready for trial, the court must exclude, inter alia, the period of delay resulting from defendant’s absence (see CPL 30.30 [4] [c] [i]). “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” (id.). …

… [W]e conclude that the People established that they exercised due diligence in attempting to locate defendant during the time period at issue at the hearing. Law enforcement officers routinely checked computer databases, social media outlets, criminal history reports and information from other government agencies to attempt to identify locations where defendant might be located. In addition, officers investigated all of the addresses associated with defendant to varying degrees, speaking with maintenance workers, neighbors, tenants, and defendant’s mother. In attempting to conduct subsequent interviews with defendant’s mother, law enforcement officers learned that she no longer resided at the same address. Law enforcement officers also contacted and spoke with all of defendant’s known employers. Although law enforcement officers did not conduct a full investigation of one address that appeared on one credit agency report, one of the officers testified at the hearing that credit reports were not reliable because “anyone . . . could go apply for a credit card online today and write [any address] on the application.” Without any corroboration of defendant’s affiliation with that address, the officer did not investigate beyond driving to the address and verifying that it was a commercial and retail building. Ultimately … the officers’ periodic database searches yielded a potential address in Georgia.

“[N]otwithstanding the fact that greater efforts could have been undertaken”… , we conclude that the People established that they exercised the requisite due diligence in attempting to locate defendant during the time period at issue … . People v Anderson, 2020 NY Slip Op 06881, Fourth Dept 11-20-20

 

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