My question is specific to misdemanor court in New York City, Manhattan
especially, and most especially at 100 Centre Street.  I would like
case citations (Lexis Nexis would be fine, I can get the full versions
with a credit card) and any other pertinent information concerning the
re-opening of a 30.30 Speedy Trial motion that has been rejected
twice.  This would be the third attempt to get a 30.30 Speedy Trial
on a misdemanor that requires 90 days total.  So far 55 days have
been conceded.
   The situation is as follows.  I want citations that would justify
   a new 30.30 motion that adds additional
   days because of the following:  On the date the trial was set
   for, the defendant was in court on time with both his parents.
   His lawyer however did now appear, and after about an hour
   an affadavit was submitted by fax from his lawyers secretary
   saying the lawyer was held up by another court case and therefore
   requested an adjournment.  Meanwhile however, the prosecutor in
   the case, unusually, refused to "come downstairs" to the courtroom
   where the trial was to occur until the defendants lawyer first
   appeared.  The judge adjourned the trial and set another date
   based on the defendant's lawyer's affadavit that he was on 
   another case.  A stand in prosecutor, not the actual prosecutor,
   stood in for the real prosecutor when the judge made the
adjournment.
       However, on that same morning the prosecutions only
       witness (other than the complaining witness), died of
       a heart attack.  This meant that the the "people" would
       have had to answer "not ready" if the prosecutor had
       "come downstairs".  The people never issued another
       "statement of readiness" after the death of the main
       witness.  
       What I would like are case citations that say that in that
       particular type of circumstance the Speedy Trial clock
       should start to run again due to the death of the witness
       and the people therefore not being ready, and should run until
the people issue another statement of readiness or declare themselves
ready in open court. In other words, 
       cases that say the fact that the defendant's lawyer did
       not appear in court on the day of the trial does not
       excuse the people from not being ready (due to the death
       that same morning at  8am) of their main witness.
       
       I will pay a nice tip if *in addition* you can give me
       a citation or other information to make the case that
       the defendant should not be forced to have the new 30.30
       Speedy Trial motion decided by the same judge who decided
       the other two 30.30. motions.  When a 30.30 Speedy Trial
       motion is "re-opened" the same judge is supposed to
       make the ruling as ruled the first time. However in this
       case the argument would be that more Speedy Trial time
       has accrued since the last decision, and that therefore
       a different judge should be permitted to rule instead of
       the same judge having to rule.

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Clarification of Question by inquiringmind003-ga on 23 Sep 2005 10:07 PDT

Here is a link that give the general idea of the kind of cases needed to
buttress this:  http://www.law.cornell.edu/nyctap/I98_0029.htm
  The relevant passage therein follows:

"...The People first announced their readiness for trial on July 19,
but various post readiness delays on the part of both the defense and
the prosecution followed until defendant brought the instant motion to
dismiss the indictment 15 months later on October 31, 1994. Among
these post readiness delays, at issue on this appeal is the 48 day
period between January 14 and March 3, 1994. On January 14, the People
were not ready for trial, but neither was defense counsel present. The
case was adjourned to March 3. On January 24, the People served their
notice of readiness dated January 22, and they argue that they should
be charged at most only with the ten days between January 14 and their
January 24 notice of readiness....."

"....We now turn to the 48 day period from January 14 to March 3,
1994. The Appellate Division found, on co defendant's appeal (People v
Anderson, supra, 231 AD2d 459), this entire period chargeable against
the People. It reasoned that the statement of readiness had no effect
on the adjournment already necessitated by the People's lack of
readiness (id., at 460 [citing People v Reid, 214 AD2d 396]).

In the post readiness context, the People bear the burden of ensuring
that the record explains the cause of adjournments sufficiently for
the court to determine which party should properly be charged with any
delay (People v Liotta, 79 NY2d 842, 843; accord, People v Collins, 82
NY2d 177, 182; People v Cortes, 80 NY2d 201, 215-216). In the instant
case, the People were not ready on January 14, and the record is
silent as to the length of adjournment sought by them. We are
persuaded, however, that a notice of readiness is the kind of record
commitment to proceed which satisfies the People's duty to be ready
for trial, and serves to toll the "speedy trial clock" from running
for the remainder of that adjournment period.
....."

---

Clarification of Question by inquiringmind003-ga on 23 Sep 2005 14:29 PDT

The comment made previously, erroneously assumed that the "stand-in"
ADA answered "Ready".  That is no the case.  Rather, the "stand-in"
ADA kept
her mouth shut and allowed the judge to adjourn due to the defendant's
lawyer having faxed an affadavit stating he could not be at the trial because
of another case in a different borough that had a higher priority.
   The contention that the 30.30 motion would make is that if the
defendant's lawyer had appeared, the ADA would have answered "not
ready".  So, the issue is
not that the people answered "Ready" when they were in fact not ready.
 The issue is to contend that the people did not answer either "Ready"
*or* "Not Ready", but would have answered "Not Ready" if they had been
asked, which they weren't.  (The defense of course did not find out
the main witness had died earlier the same morning until long after
the adjournment had occured... that is the reason why, once the
defence found out, they want to submit a new 30.30 motion).
   I hope this helps.

Not legal advice - see Google's disclaimer.

 Nonetheless, you really don't have a chance of dismissal on CPL 30.30 because:

1) It is irrelevant that "the real" prosecutor (i.e. the ADA assigned
to the case) was upstairs and didn't come down.  The ADA in the
courtroom can answer ready on behalf of the People, and it carries the
same force as if "the real" prosecutor did.

2) The fact that the only other witness in the case died the night
before is unfortunate (particularly for the witness and his/her
family), but does not mean the People would not, and could not, answer
ready.  The death of the witness might make their case more difficult
(or even impossible) to prove, but it is not grounds, in and of
itself, to prohibit the People from answering ready and going to
trial.

P.S. I hope you have an alibi for the night the witness died (just kidding).

Good luck.

This is not legal advice (see earlier caveat), but. . .

Basing your argument on: "The issue is to contend that the people did
not answer either "Ready" *or* "Not Ready", but would have answered
"Not Ready" if they had been asked, which they weren't"  will not
prevail.  This is for the simple reason that it is impossible to prove
how the People would have answered if asked; either "ready" or "not
ready."

One's belief, or even one's entirely logical inference, that the
sudden death of the witness would so cripple the prosecution that they
could not possibly "ready" for trial (in terms of prevailing) may well
be correct.  But it is entirely irrelevant for the purposes of 30.30.

Assume that the prosecution was asked, and answered "ready."  Then
what?  Your lawyer still was not there.  It's non-chargeable time
under 30.30.

Follow the scenario.  Your lawyer isn't there.  The ADA knows that his
star witness is dead, and without that witness the case is a sure
looser unless he can find another witness/angle/argument/theory.  The
ADA also knows he is up against a hard 30.30 deadline which will
result in an immediate dismissal if he answers, "Not ready."

The fateful moment arrives, and the judge asks the ADA if he is ready
to proceed.  The ADA answers, ?Yes.?

Assuming that you know (which you said, at the time, you didn't) that
the star witness is dead, how would you expect the judge to rule if
you said, "Judge, I object.  Their star witness died this morning, and
without that witness, their case sucks.  There is no possibility they
can win.  So, when the ADA says he is ready, he is lying.  He knows he
can't win.   He needs time to restructure his case.  Therefore, I move
that the prosecution should NOT be allowed to answer 'ready.' 
Furthermore, I move that since the prosecution is not ready, and 30.30
time has run out, I ask the Court to dismiss all charges on speedy
trial grounds, even though my lawyer is not here, and the trial could
not proceed in any case."

The bottom line is not whether the prosecution is ready in the sense
of being fully prepared and able to win, but whether they ARE WILLING
to proceed (whether asked or not, but that point was made moot by your
lawyer's absence).

Although there might be other angles from which to attack the
prosecution, your current argument will be ineffective.

Again, good luck.