SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST DEPARTMENT
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THE PEOPLE OF THE STATE OF NEW YORK,

Respondent,

-against-
Indictment No. 1814/99

KENNETH BOSS, SEAN CARROLL, EDWARD McMELLON and RICHARD MURPHY,
Defendants.
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MEMORANDUM OF LAW

ROBERT T. JOHNSON
District Attorney
Bronx County

198 East 161st Street
Bronx, New York 10451
(718) 590-2156

ERIC J. WARNER
Senior Executive Assistant District Attorney

ANTHONY J. GIRESE
Counsel to the District Attorney

JOSEPH N. FERDENZI
JEAN JOYCE
Assistant District Attorneys
of counsel

Respondent,

-against-
Indictment No. 1814/99

KENNETH BOSS, SEAN CARROLL, EDW'ARD McMELLON and RICHARD MURPHY,
Defendants.
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MEMORANDUM OF LAW

STATEMENT

The People submit this memorandum of law in support of their cross-motion to dismiss defendants' change of venue motion.

QUESTION PRESENTED

Whether defendants failed to establish due diligence or good cause for the untimely filing of their change of venue motion

THE FACTS

The facts relied uon in this memorandum of law are dcontained in the accompanying affirmation of Assistant District Attorney JEAN JOYCE, dated November 15, 1999. And in exhibits annexed hereto.

ARGUMENT

POINT

DEFENDANTS' CHANGE OF VENUE MOTION SHOULD BE DISMISSED BECAUSE THEY DID NOT TIMELY FILE IT OR ESTABLISH DUE DILIGENCE OR GOOD CAUSE FOR THEIR FAILURE.

Criminal Procedure Law § 255.20 regulates pretrial proceedings, including, by explicit statutory cross-reference (CPL 230.20[3]). the filing of a change of venue motion. The Court of Appeals has held that section 255.20 is designed to prevent "the proliferation experienced under prior procedure in which a defendant could bombard the courts and Judges with dilatory tactics continuing right up to the eve of trial." People v. Lawrence, 64 N.Y.2d 200, 205 (1984) (citation omitted). The statute is designed to balance the interests of fairness and constitutionality and to establish a framework for the speedy disposition of cases with "critical and sometimes unbending consequences" when excuses for failure to comply with statutorv requirements do not meet the good-cause requirement. People v. Pem, 128 Misc.2d 430, 435-36 (N.Y. Sup. Ct. 1985) (quoting Bellacosa, Practice Commentary. McKinney's Cons. Laws of NY, Book 1 1 A, CPL § 255.20 at 440).

Under section 255.20( 1 ), defendants were required to file their change of venue motion within forty-five davs of arraignment. Alternatively, defendants could have submitted an application to this Court seeking additional time in which to file the motion. CPL § 255.20(1) ("all pre-trial motions shall be served or Iled within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entw ofjudgment.'') (emphasis added). Defendants faiIed to make such an application in this Court, and therefore the Court need not consider the instant motion. See People v. Key, 45 N.Y.2d 1 1 1, 1 16 (1978) (where defendant does not apply for more time in which to file a motion, he is not entitled to statutory exception to the forty-five day rule).

Moreover, defendants previously moved in the wrong court to seek permission to delay filing a change of venue motion, and their application was denied by Justice W illiams. Thus, defendants had clear notice of their need to seek relief in this Court. In People v. LaBron, 172 A.D.2d 462 (lst Dept.), lv. denied, 78 N.Y.2d 968 ( 1991 ), a defendant's motion to enlarge the time to file pre-trial motions was previously denied by a Justice of the Supreme Court. Defendant nevertheless brought an oral motion to suppress physical evidence, consisting of pre-recorded buy money. This Court held that. in addition to the denial of the enlargement of time to file, defendant also failed to establish good cause, under CPL § 255.20, for his delay in bringing the motion. Thus, the Court determined that the motion was properly denied. LaBron, 172 A.D.2d at 462-63. Similarly, here, defendants' motion to enlarge the time to file their change of venue motion was denied by Justice Williams as beyond the power of that court. (See Ex. 2 at 24.) Thus, it is proper to dismiss the instant motion, where, as discussed, infra, defendants have failed to establish good cause.

Defendants have failed to comply with the mandates of CPL § 255.20(3). That section provides, in pertinent part, that

The statute incorporates separate circumstances under which a court may consider an untimely motion. Consideration is mandatory when a defendant shows that, even with due diligence, he could not have been aware of the grounds he is raising, or when the grounds could not reasonably have been raised for other good cause. Alternatively, late motions may nevertheless'be considercd "in the interests of justice and for good cause shown." CPL § 255.20(3). See People v. Huang,~248 A:D.2d 73. 76 ( 15` Dept. 1998) (noting the distinction in CPL § 255.20 among the mandatory standards of (1) due diligence when defendant could not have been aware, (2) good cause when grounds could not reasonably have been raised. and (3) the interest ofjustice standard. also requiring good cause), lv. denied, 93 N.Y.2d 875 (1999).

Defendants have not shown either due diligence or good cause to justify their late filing. Defendants claim that "the continuing effects of the prejudicial pretrial publicity and inflamed community atmosphere . . . . including the results of the Mitofsky poll conducted into mid-October, 1999. constitute good cause for the making of a motion of this nature at this time." (See Affirmation of Burton B. Roberts, Esq. dated November 8, 1999 at paragraph 3.) This claim is inadequate.

Simply stated. defendants do not bother to allege specific grounds of which they could not, with due diligence, have been previously aware, or which, for other good cause. could not reasonably have been raised within forty-five days of arraignment. Indeed, they specifically rely on "the continuing effects ofthe prejudicial pretrial publicity and infiamed communiy atmosphere" tojustify bringing the motion at this time. Since they concede that these alleged effects of publicity and community atmosphere are '`continuing," it is obvious that they have been "previously aware" of them.

Moreover, the bulk of newspaper articles on which defendants rely was published durine the period from February ~ through April 12.~ As noted in the accompanying affitmation, the statutory period of forty-five davs from arraignment here expired on May 17. Most of the articles now utilized by defendants were published before or during this forty-five day period. Yet defendants have not shown, nor could they show, that they were not previously aware. of the publication of the articles, or that other good cause exists for their failure to raise these issues. Defendants also rely on a Quinnipiac College poll taken between March 29 and April 7, 1999. Defendants have not demonstrated that, with due diligence, they previously could not have been aware of this poll, or that, for other good cause, they could not reasonably have raised the results of the poll in a timely motion. To the contrary, they now seek a review of claims the grounds of which have been evident since midApril, a full month before their motion should have been timely filed. Thus, they fail both the due diligence and good cause tests.

While defendants do not specifically identify the Mitofsky poll as the "good cause" needed to warrant a late filing. it is the only significant event they can point to that occurs after the May 17 deadline. Defendants should not be able to self extend the forty-five day time limit by commissioning a poll that was conducted from September "into mid-October." (See Roberts Affirmation at paragraph 3.) As previously discussed, CPL § 255.20 is designed to prevent the dilatory tactics of motion practice that continues right up until the eve of trial. Lawrence, 64 N.Y.2d at 205. Moreover, the statute should be strictly construed and enforced "in order to insure its continued viability." People v. Selbv, 53 A.D.2d 878 (2d Dept. 1976) (noting that the defendant proffered no excuse whatsoever for his failure to raise a voluntariness issue in a timely manner); aff'd, 43 N.Y.2d 791 (1977). To allow defendants to establish "good cause" with a poll that, by their own design, commenced in September, when their filing deadline was the previous May, would be to nullify the purpose of the statute. Under such an application, any time a defendant failed to move for a change of venue in a timely fashion, he could later commission a poll purporting to show his inability to get a fair trial, and thereby eliminate the constraints of CPL § 255.20. Thus, since defendants have not provided this Court with good cause for their failure to timely file, this Court should not hear the motion.

Although not raised by defendants, a case from another department of this Court bears some discussion. In People v. Brensic, 136 A.D.2d 169 (2d Dept. 1988), the defendant stated his intention to bring a change of venue motion during the middle of voir dire. The trial court insisted that defendant wait until voir dire was completed. and defendant complied, bringing the motion in the Appellate Division, Second Department after twelve jurors and four alternates were selected and sworn. In response to the motion, the People agreed that a change of venue was warranted. The Second Department first noted that, in its view, the courts have consistently held that pre-voir dire change of venue motions are premature. The court then determined that, although not raised by the People, under the facts of the case, the defendant's application was timely made under CPL 255.20. Apparently based on the trial court's insistence that the defendant wait until voir dire ended, and on the bias that potential jurors exhibited during the voir dire, the court held that the defendant demonstrated good cause, in that the application "could not reasonably have been raised" prior to the commencement of trial. See Brensic, 136 A.D.2d at 171-73.

Brensic is distinguishable from the instant matter. First. potential juror bias became apparent during voir dire,to voir dire, or, indeed, within the forty-five day period. Here, voir dire has not yet commenced. Additiuonally, defense councel was essentially instructed to wait before filing a change of venue motion by the trial Judge, who wished first to complete voir dire. By contrast, here, the defendants were informed by Justice Williams, in her September 29 decision, that she did not have the power to permit them to delay a change of venue motion. Finally, in Bresnic, a "compelling factor" in the court's determination on the merits was "the fact that the People have unequivocally and candidly stated that based upon the results of the jury selection process" a change of venue was necessary to ensure the defendants's right to a fair trial. Bresnic, 136 A.D.2d at 175. Since there was no opposition from the People eithewr on the time-bar issue or on the merits, the Second Department could have exercised its descretion in the interest of justice to hear the defendant's motion motion for good cause. Here, by contrast, the Court should decline to exercise its descretion in the interest of justice, where good cause is obviously lacking.

In sum, for the foregoing reasons, this Court should dismiss defendants' motion in all respects.

CONCLUSlON

DEFENDANT'S MOTION SHOULD BE DISMISSED IN ALL RESPECTS.

Respectfully submitted.

ROBERT T. JOHNSO
District Attorney
Bronx County
Attorney for Respondent

ERIC J. WARNER
Senior Executive Assistant District Attorney

ANTHONY J. GIRESE
Counsel to the District Attorney

JOSEPH N. FERDENZI
JEAN JOYCE
Assistant District Attorneys of Counsel

November 1999