Friday, April 28, 2006

AD4: trial court's failure to grant defendant short adjournment to produce alibi witness is reversible error

The Fourth Department handed down decisions for it's April term today, with some interesting criminal decisions in the mix. Starting the review of the April packet is . . .

People v Walker, __ AD3d __ [available here]

The trial court in Walker refused to grant the defendant a short adjournment to produce an alibi witness when his intended alibi witness became unavailable at the last minute due to a serious illness that required hospitalization. The Fourth Department, after noting that the "'more liberal policy in favor of granting a short adjournment . . . when the delay is requested in order to insure a fundamental right', e.g., the request for an adjournment to produce an alibi witness", held "that the court abused its discretion in denying his request for a 45-minute adjournment." (Walker, __ AD3d at __.) From the decision:

[T]here is no evidence of dilatory conduct on the part of defendant. The record establishes that the alibi witness subpoenaed by defendant was seriously ill and that defense counsel requested the adjournment in order to present the alibi testimony of that witness's son. In addition, there is no indication in the record that the proposed alibi testimony would be cumulative to other evidence presented inasmuch as no other alibi testimony had been presented concerning defendant's precise whereabouts at the time of the shooting. Because the proposed testimony of the alibi witness was pivotal with respect to the issue of defendant's guilt, we conclude that defendant was denied the fundamental right to defend himself.

(Id. at __.)

Justices Kehoe and Hayes dissented, arguing that "defendant utterly failed in our view to meet his burden of establishing his entitlement to an adjournment" in part because "[d]efense counsel made no offer of proof demonstrating that the son's proposed testimony would be 'material and favorable to the defense.'" (Id. at __.)