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

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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. 51
Team 21 v 26 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: Seth Jaff and Joe Alari, for Appellant. Dio Nunez and Koraly Adams, for Respondent. JUDGES: Englemann, Walker, Dole, Galusha, Muthig OPINION BY: Last OPINION We the Appellate Court of the State of New York find in favor of the respondent, the People of the State of New York. The respondent properly showed that Judge Colleen Murtagh did not abuse her discretion by refusing the additional 30- minute delay. The respondent also proved that sufficient time was given to confer with the counsel. The issue presented in this case is whether or not the court abused its discretion by refusing the third adjournment. The rule for whether or not the court abused its discretion is the Foy test addressed in People v. Foy. The Foy test states that “to put off a trial it must appear (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; (3) that the witness can be had at the time to which the trial has deferred.” In People v. Adair the witness was not material because the officer was not present during the crime. Similarly, in our case Atrion was not a material witness because there are two other witnesses that stated Atrion and Raphael were not together the whole night. As to the second Foy test factor, Raphael was neglectful. He could have done much more to get Atrion to the courtroom; there are many means of transportation in New York City. They could have sent him a bus schedule, ordered a taxi, or taken a subway. Addressing the third factor of the Foy test, there is no way to be sure Atrion could be present at the time to which the trial would be deferred. Atrion failed to attend the two adjournments. Thus, he has decided to change his mind and not testify. In sum, all three factors have not been met. The second issue presented is whether or not sufficient time was given to confer with counsel. In People v. Spears the judge gave the defendant 5 seconds to confer with counsel. In Spears the court found that 5 seconds was not enough time. In our case, 15 minutes were given for counsel to confer with Raphael. That amount of time is sufficient to satisfy the right to counsel. Unlike Spears, Raphael was given two previous adjournments when another argument should have been prepared in case Atrion did not show up, which was likely given the fact he did not appear to testify after two adjournments were granted. Defense counsel should have prepared previously. The court properly denied the second request for an additional 30-minute delay. We agree with the original ruling of the court and that Raphael’s conviction came at the conclusion of a properly conducted, fairly run trial. 52
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