2012 Conference Executive Record Report.pdf - YMCA of Greater ...

not because his actions show that he has changed his mind and doesn’t wish to testify. The fact
that Atrion only revealed his knowledge two days before trial, he did not seek alternative
transportation on other scheduled trial days, and other witnesses testified to never seeing the
Appellant and him together during the wedding, shows he most likely changed his mind on
testifying as he does not want to perjure himself. The close timing of adding Atrion to the
witness list shows that it may be a last resort for the defense as the Appellant should have raised
Atrion as an alibi long before this time if he is in fact an alibi. Since the Appellant cannot
satisfy any of the three prongs set forth in People v Foy, the trial court was correct and within its
right to deny a third continuance.
II. THE TRIAL COURT DID NOT VIOLATE APPELLANT ORTEGA’S SIXTH
AMENDMENT RIGHT TO EFFECTIVELY CONFER WITH COUNSEL.
Throughout the trial, two contiuances were granted for a total of twenty-five minutes, for
Ortega to confer with his counsel. In People v. Spears (supra at 700), the trial judge allowed the
defense “a few minutes” to converse, but interrupted their discussion in no less than five seconds
after the unexpected end of the prosecution’s case. That case was overturned at the appellate
division. In comparison, the defense was given ample amount of time to meet because in
addition to the twenty-five minutes given by the trial judge after the Appellant was told he must
proceed with his case, he actually had since 3:00 p.m. on the previous day when the prosecution
rested and the first adjournment was granted to discuss the possibility that the witness may not
appear, and to discuss the pros and cons of Appellant testfying on his own behalf. The judges
came to the conclusion that “denying even ‘a few minutes’ delay was arbitrary and an abuse of
discretion as a matter of law.” People v. Spears (supra at 700). Our case can easily be
distinguished from People v. Spears. The defendant’s constitutional right to confer with counsel
was in no means violated.
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