After their house had been fired upon in a drive-by paintball attack, Russell Accetta and his son got into their car and gave chase. Upon catching up to the vehicle, Accetta approached the perpetrator and hit him twice over the head with an aluminum baseball bat.
Because of the extensive delay in prosecuting the criminal case, Accetta moved to dismiss the charges on "speedy trial" grounds. According to Accetta, the prosecution failed to conduct a trial within 184 days of the felony complaint's filing.
After Accetta was convicted of assault in the third degree, harassment in the second degree, and criminal possession of a weapon in the fourth degree, he appealed to the Appellate Term, Second Department, which affirmed.
It was conceded that 166 days -- from March 7, 2004 to August 10, 2004 -- were chargeable to prosecution. But since the balance of the time was in dispute, the court examined the reason for the postponements so that it could address whether or not the additional time was also assessable to the prosecution.
Although the government had requested a 10-day adjournment to August 20, the time period between August 20 and September 1 was excludable since it had been requested by Accetta's codefendant.
While Accetta argued that the period December 20, 2004 through January 10, 2005 was also attributable to the prosecution, the AT2 did not fully agree, since a part of the delay had been triggered by lack of availability of a jury until January 3, 2005.
While Courts will exclude delays occasioned by "exceptional circumstances," including the unavailability of a material witness, the People must exercise "due diligence" in procuring the attendance of said witness for trial. As a result, the period January 3 to January 10 was chargeable to the prosecution since it had failed to exercise that diligence by not subpoenaing its witnesses.
The remaining time period under challenge -- from May 23, 2005 through June 6, 2005 -- was excluded from the calculation since it comprised a reasonable time for trial preparation once Accetta's speedy trial motion had been denied by the court below.
After adding up all the days chargeable to the People (183 days), Accetta fell one (1) day short of the required number to get the case dismissed, thus compelling denial of his speedy trial motion.
As to Accetta's contentions that the evidence was insufficient as a matter of law to establish his guilt of "reckless assault in the third degree" and that the prosecution failed to disprove his justification defense, AT2 was of the opinion that the outcome was supported by the record and consistent with the evidence presented at trial.
We bet a day doesn't go by without the defendant regretting this one.
For a copy of the Appellate Term's decision, please use this link: People v. Accetta