A 30.30 Ethical Dilemma

People v. Price (2d Dept. 2/10/2009) raises an interesting issue about prosecutorial ethics in the context of a CPL § 30.30 claim.

The defendant in Price was charged, by felony complaint, with Attempted Disseminating Indecent Material to a Minor in the First Degree.  Approximately six months later, the Second Department decided People v. Kozlow, a case involving a similar issue: whether the evidence of this crime is legally sufficient when the defendant communicated over the Internet with an undercover police officer, believing him or her to be a minor, but did not transmit any visual sexual images.  In Kozlow, the Second Department reversed the defendant's conviction, finding the evidence legally insufficient.  The People sought leave to appeal and the Court of Appeals reversed the reversal and affirmed the defendant's conviction.

While Kozlow was bubbling up through the Court of Appeals, the Suffolk County District Attorney's Office elected not to seek an indictment in Price, reasoning that doing so would be pointless and unethical, given the Second Department's holding in Kozlow.  The DA elected to wait until after Kozlow was decided by the Court of Appeals in order to seek an indictment in Price and state ready for trial.  After he did so, the defendant brought a motion to dismiss, under CPL § 30.30, which was granted by the trial court.  The People appealed and the Second Department affirmed.

The court --- Justice Mastro writing for a unanimous panel --- rejected the People's contention that the delay between Kozlow (2d Dept.) and their statement of readiness should fall under the "exceptional circumstances" exception of CPL § 30.30(4)(g):

Initially, we note that the prosecution never sought any continuance as referenced in CPL 30.30(4)(g). Moreover, while the examples of exceptional circumstances set forth in that section are not exclusive, the statute clearly contemplates situations in which a district attorney encounters difficulty in obtaining evidence or in otherwise preparing for trial in the particular case before the court (see generally People v Washington, 43 NY2d 772; People v Robinson, 47 AD3d 847; People v Williams, 244 AD2d 587). Furthermore, although the Penal Law excludes reasonable periods of delay caused by appeals which involve the particular defendant who is being prosecuted (see CPL 30.30[4][a]), it does not similarly provide for an exclusion of time during the pendency of an appeal in an unrelated matter which merely involves similar legal issues (see People v Cortes, 80 NY2d 201, 211-212). To find otherwise would be to permit the People to charge a defendant with a crime and then hold the matter open indefinitely on the ground that a potentially relevant issue in another case before a different court might influence the open matter. Such an approach finds no support either in the language of the statute or in the cases interpreting it, and is antithetical to the very purpose of the speedy trial rule itself.

The People contend that the exceptional circumstances exclusion should be applied here because this Court's decision in People v Kozlow (31 AD3d 788) effectively placed the instant case in a "holding pattern" during which "[t]he matter could not legally or ethically have been presented to a Grand Jury nor could the People announce readiness [for trial]." However, while it is true that the case could not move forward, it never should have been placed in a "holding pattern" to begin with. Rather, once the People determined that this Court's Kozlow decision rendered the continued prosecution of the defendant impossible, they were obligated to terminate that prosecution. Had the People done so, they could have explored the possibility, if any, of commencing a subsequent prosecution of the defendant based on the reversal by the Court of Appeals in People v Kozlow (8 NY3d 554).

Accordingly, the exceptional circumstances exclusion set forth in CPL 30.30(4)(g) is not applicable to the circumstances of this case. Simply put, the term "exceptional circumstances," as used in that section and as interpreted by our courts, cannot be deemed to encompass a situation where the prosecution indefinitely holds open a pending criminal matter, which is ripe for dismissal, in anticipation of the possible establishment of case law more favorable to its position in the future.

So did the Suffolk County DA act properly or improperly in waiting to seek an indictment?  Consider:

• The court was incorrect that the problem could have been cured if the People had simply dismissed the felony complaint and re-prosecuted the case after Kozlow was finally resolved.  Only a final disposition on the merits terminates a prosecution.  See People v. Osgood, 52 N.Y.2d 37 (1980).  A nolle prosequi does not stop the 30.30 clock.
• The only discernible option was for the People to seek an indictment and state ready for trial.  Would this have been ethical?  Hadn't the Second Department just held that this type of charge was improper?  At the time, the relevant ethical rule was DR 7-103: "A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he or she knows or it is obvious that the charges are not supported by probable cause."  The People's argment was that they could not have sought an indictment because they "knew" or it was "obvious" that the charge was not supported by probable cause in light of Kozlow.  I don't buy this argument.  Kozlow was not final until after the Court of Appeals finally disposed of it, either by denying leave or by granting leave and rendering its decision.  So long as the Suffolk DA thought that his Westchester counterpart (who was prosecuting Kozlow) had a good faith basis for its appeal to the Court of Appeals, there was nothing improper with prosecuting Price.  Obviously, if the Court of Appeals' decision in Kozlow had come out differently, Suffolk would have had an obligation to dismiss the charge against Price since at that point the law had become settled.
• If the People had pursued this option, they would have immediately faced a motion to dismiss the indictment.  The defense would have a winning argument, given Kozlow.  A prudent judge --- being informed of the continued vitality of Kozlow in the Court of Appeals --- would have held his or her decision in Price in abeyance until the case was finally resolved.  If, on the other hand, the motion to dismiss was granted, the People would note an appeal --- ethically permissible because, again, they would have had a good faith basis for prosecuting that appeal.
• I don't fault the People's motives in Price.  Delaying further action in Price made sense from many different angles, fiscal and legal.  The problem is that such a course of action --- however logical from the People's perspective --- keeps the defendant in limbo.  Given the nature of the charge in Price, I doubt that defendant was being detained. Still, the delay of 14 months was a long time for a person to put his or her life on hold.

(LC)