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Team 17 v 24
RAPHAEL ORTEGA Appellant, v. THE
PEOPLE OF THE STATE OF NEW YORK,
Respondent.
Supreme Court, Appellate Division, Third
Department, New York
March 10, 2012, Argued
March 10, 2012, Decided
COUNSEL: Kiersten Chambers and Kassie
Chopa, for Appellant.
Daniel Shwartz, Colton Bishop,
and Rebecca Sung, for Respondent.
JUDGES: Orr, Mazzeo, Jacobs, Cicerelli,
Kappel, Sutton
OPINION BY: Last
OPINION
We the Appellate Court of the State of New
York find in favor of the respondent, The State
of New York. The respondent properly showed
that the judge’s decision to deny Raphael
Ortega’s third request for a continuance was not
violating his right to call a witness and the right
to effectively confer with his council.
The respondent’s properly showed that Ortega’s
rights to call a witness were not violated by
using the test outlined in The People of the State
of New York v. Foy. The test consists of three
prongs, 1. That the witness is really material and
appears to the court to be so; 2. That the party
who applies has been guilty of no neglect and 3.
That the witness can be had at the time to which
the trial is deferred. The appellants attempted to
prove that the defense did all they could to reach
Raimundi and to ensure his presence in court.
The respondent properly refuted this by arguing
that a phone call to the family and a delayed
material witness warrant were not enough to
grant a new trial and thus failed the second
element of the Foy test. It is required that the
appellant prove that Ortega practiced due
diligence in providing his alibi witness. But, the
respondent’s continued emphasis on the lack of
communication between Raimundi and Ortega,
as well as the failure to provide transportation,
only confirmed that Ortega lacked due diligence
in providing a witness.
Next, the respondent successfully argued that the
appellant had also failed the third element of the
Foy test by inadequately arguing that Raimundi
would in fact arrive if the trial had been
adjourned. The respondent correctly showed
how the two adjournments and the 15 minute
break were adequate amounts of time for the
defense to locate their witness. The appellants
failed to prove how Raimundi would have been
any more likely to appear in court, especially
that he could not even be reached after the
subpoena. The request for a third adjournment
was correctly denied since the witness was
proven to be unreliable and elusive.
The respondent lastly proved that Ortega’s right
to effectively confer with his council was not
violated. By correctly citing the case of The
People of the State of New York v. Spears, the
respondents proved the previously granted
adjournments were ample time for the defense to
prepare their case and that Ortega’s right to
confer with council was not violated. The
respondent showed that when the judge granted
the extra adjournment, the defense should have
discussed alternative ways to prove their case for
the sake of efficiency of time for the court.
Ortega was granted more than a few minutes to
discuss with his lawyers over the course of the
trial. In the case of Spears, the judge only
granted a few minutes, while Ortega was given
sufficient time to discuss the possibility of the
witness not appearing.
We disagree that Raphael Ortega’s third request
for a continuance was violating his right to call a
witness and the right to effectively confer with
his council. We find that the lower court’s
original ruling should not be overturned.
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