Appellate Term Orders Hearing on Speedy Trial Issue
September 20, 2016
Ms. Elizabeth Morena was convicted at a nonjury trial of attempted third-degree assault and related counts. In response to Ms. Morena’s C.P.L. 30.30 motion below, the People had claimed a C.P.L. 30.30(4)(g) “exceptional circumstances” exclusion from the speedy trial clock because the arresting officer was unavailable and his testimony was material to the issue of identification. The defense argued that there was no identification issue, Ms. Morena had never asked for a Wade hearing, and that no such hearing had ever been ordered. The lower court denied Ms. Morena’s 30.30 motion, ruling that a Wade hearing had been ordered, although nothing in the court file or the available minutes proved this.
In a decision dated September 20, 2016, the Appellate Term rejected all of the People’s arguments concerning the materiality of the arresting officer’s testimony. As for the hearing issue, it ruled that certain notations in the court file were ambiguous as to whether a hearing had been ordered, and thus the Court remitted the case for the lower court to report on whether it ever ordered a Wade hearing.
Joshua Levine briefed the case in the Appellate Term.