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Decided on February 23, 2009
Suffolk Dist Ct

2006SU34171
THOMAS M. SPOTA, III Suffolk County District Atty. 400 Carleton Avenue Central Islip, NY 11722 By: Michael Manning Assistant District Attorney THOMAS J. LAVALLE ESQ.
490 Wheeler Road, Ste. 165K
Hauppauge, NY 11788
Salvatore A. Alamia, J.
The defendant seeks dismissal of the information charging him with two counts of Driving While Intoxicated, in violation of VTL 1192(2) and (3), and one count of Leaving the Scene of an Accident, in violation of VTL 600(1), on the ground that the People have exceeded the ninety day statutory readiness period provided by CPL 30.30(1)(b). A hearing was held on October 6, 2008, at which Police Officer Kenneth Ripp, a police officer with the Suffolk County Police Department, testified on behalf of the People. The parties were given the opportunity to submit written closing statements, which have now been deemed waived. Based upon the credible evidence adduced at the hearing, the Court makes the following findings of fact and conclusions of law.
Findings of Fact
Officer Ripp has been a police officer with the Suffolk County Police Department for seven and a half years, and was the arresting officer in this criminal action. On December 16, 2006, Officer Ripp was injured when he responded to the scene of a violent domestic incident and fell over a railing from a height of nine feet while struggling with the subject, who landed on top of him. Officer Ripp sustained a broken femur and broken tibia, although his injuries were not correctly diagnosed until three weeks after the incident. The officer experienced severe pain and swelling in his left leg and foot, and ultimately required surgery, which was performed on March 15, 2007. Officer Ripp remained completely bedridden for several weeks, after which he undertook a course of physical therapy. During this entire period, the officer was on a medical leave of absence from the [*2]police department and was medically unfit to report for duty.
On September 24, 2007, Officer Ripp was able to return to the police department on light duty, and was assigned to the First Precinct desk. He remained on light duty until January 31, 2008, when he was able to return to full duty. The officer was taking Hydrocodone and then Vicodin for pain until mid-January, and also underwent physical therapy on a regular basis until his return to full duty on January 31, 2008.
Conclusions of Law
The sole issue at the hearing is whether the period of delay from February 1, 2007 through November 8, 2007 is excludable from the statutory readiness period as an exceptional circumstance within the meaning of CPL 30.30(4)(g)(i), due to the unavailability of the arresting officer, Police Officer Kenneth Ripp.
The arresting officer is a material prosecution witness in a criminal action, and his or her unavailability for medical reasons has been held to constitute an exceptional circumstance warranting the exclusion of the period of delay during which the officer is medically unable to testify. See, People v. Hernandez, 268 AD2d 344 (1st Dept. 2000), lv. den. 95 NY2d 853 (2000); People v. McLeod, 281 AD2d 325 (1st Dept. 2001), lv. den. 96 NY2d 899 (2001); People v. Taylor, 2001 NY Slip Op 40485U (App. Term, 1st Dept. 2001); People v. Martinez, 268 AD2d 354 (1st Dept. 2000), lv. den. 94 NY2d 922 (2000); People v. Luperon, 196 Misc 2d 154 (Criminal Ct., New York Co. 2003).
The evidence at the hearing established that Officer Ripp was medically unavailable to testify during the period of his leave of absence from the police department, while he was recovering from serious injuries sustained in the line of duty. The evidence further established that Officer Ripp remained unavailable during the period of his assignment to light duty following his return to the police department on September 24, 2007, as he was still undergoing physical therapy and taking Hydrocodone and then Vicodin, both powerful pain-killers which rendered him medically unfit to testify in a criminal proceeding. See, People v. Luperon, 196 Misc 2d 154 (Sup. Ct., New York Co. 2003). "The speedy trial statute cannot be interpreted to inflict [the] kind of pain or inconvenience on a testifying witness" such as would require him to stop taking pain-killing medication long enough to testify without being under its influence. People v. Luperon, supra, at 157. [*3]
The Court accordingly finds that the People have met their burden of establishing that Officer Ripp was medically unavailable during the period at issue from February 1, 2007 to November 8, 2007. The requirement that the People exercise "due diligence" to make a witness available has been satisfied, as "no amount of diligence" on the People's part would have made the officer recover any earlier. See, People v. Harden , 6 AD3d 181, 182 (1st Dept. 2004), lv. den. 3 NY3d 641 (2004); People v. Mack, 300 AD2d 254 (1st Dept. 2002), lv. den. 100 NY2d 540 (2003); People v. Pressley, 115 AD2d 228 (4th Dept. 1985); People v. Martinez, supra. There were reasonable grounds to believe the officer would become available to testify in a reasonable period, once he had recovered from his injuries. The officer's unavailability therefore constituted an "exceptional circumstance" which rendered the period of delay at issue excludable under CPL 30.30(4)(g)(i). See, People v. Hernandez, supra; People v. McLeod, supra; People v. Martinez, supra. The defendant's motion for an order dismissing the information pursuant to CPL 170.30(1)(e) and 30.30 is denied accordingly, as the People have not yet exceeded the statutory readiness period.
This constitutes the decision and order of the Court.
Dated:February 23, 2009
J.D.C. THOMAS M. SPOTA, III Suffolk County District Atty. 400 Carleton Avenue Central Islip, NY 11722 By: Michael Manning Assistant District Attorney THOMAS J. LAVALLE ESQ. 490 Wheeler Road, Ste. 165K
Hauppauge, NY 11788

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