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

argument. Flynn Jebb also testified that Appellant became very angry when others at the
wedding could not stop laughing when the Appellant told the “other black guy” story.
After the prosecution rested, the Appellant was directed to call his first witness. Atrion
was to be that first witness, but he had left the courtroom on the first day of trial and was told to
return when the defense started its case. No new subpoena was issued to Raimundi. The trial
judge used her discretion and adjourned the matter to the next day. A second adjournment was
graciously given to 2:00 p.m. after the Appellant’s attorney stated to the Court that he did not
have an answer as to where the witness was, as he was told by telephone that Atrion would be
there when the trial began in the morning. The witness was still not there at 2:00 p.m. and the
request for a material witness subpoena was denied.
The Appellant was directed to proceed with his case by the trial judge and was given first
a ten minute conference and then a 15 minute break to confer with his attorney on how to
proceed. When a third break was denied, Appellant testified contrary to the other witnesses by
testifying that he and Atrion were together for long periods of time in the dessert line. Appellant
could find no other witnesses at the large event to support his claim. The prosecution cross
examined him regarding how long it took for Atrion to surface as an alibi witness. Appellant
was convicted and sentenced to one year in prison. He appeals lower court’s ruling on the
grounds that the denial of the third continuance to produce his alibi witness and the second
request for an adjournment to confer with counsel violated his sixth amendment rights.
SUMMARY OF ARGUMENT
In any case, “when the protection of fundamental rights has been involved..., that
discretionary power has been more narrowly construed” for judges. People v. Spears, 64 N.Y.2d
698, (N.Y. 1984). The trial court did not abuse its discretion when denying Appellant Ortega’s
final request for an adjournment to produce his alibi witness. This continuance was not
warranted because the request was based on the lack of appearance from a witness who was not
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