A state appeals court has thrown out a New York man’s convictions for attempted murder and assault, along with his 15-year sentence, because prosecutors were not ready for trial within the Speedy Trial Act’s prescribed time.
Prosecutors under Manhattan District Attorney Cyrus Vance Jr. will not be able to prosecute defendant Domingo Ricart again because his alleged crimes were felonies. Felonies dismissed under the act, set out in CPL Sect. 30.30, can’t be re-prosecuted.
But on Wednesday, Caitlyn Fowles, a spokeswoman for Vance, noted that prosecutors are reviewing the Appellate Division, First Department, decision tossing the jury-trial convictions “with an eye toward seeking leave to appeal to the Court of Appeals.”
The Aug. 1 decision by a five-justice Appellate Division, First Department, panel was split 3-2. The majority ruled Manhattan Supreme Court Justice Ronald Zweibel erred in 2014 when he denied Ricart’s 30.30 motion arguing the state hadn’t been ready for trial within 183 days. Zweibel found the state could only be charged with waiting 181 days.
But Justices Sallie Manzanet-Daniels, Karla Moskowitz and Barbara Kapnick noted in People v. Ricart, 1815/12, that prosecutors “concede that they should have been charged with 12 additional days,” although they also argued that even more days counted against them should not have been.
In analyzing the day-count, the justices found that days related to delay caused by a state witness who left the country for vacation should be attributed to the state because prosecutors didn’t attempt with the proper “due diligence” to make sure the witness appeared.
Justices Troy Webber and David Friedman disagreed. Webber wrote there is “no legal support for the argument … that the failure of the people to subpoena the witness [and do other actions] constituted a failure on their part to exercise due diligence.”
Jan Hoth, lead appellate counsel at Center for Appellate Litigation, represented Ricart and couldn’t be reached for comment.