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

material, and there was no certainty that he would attend a later trial date. Also, the defense did
not exercise due diligence in order to guarantee his appearance. Finally, the denial of a second
recess was appropriate and did not violate the Appellant’s Constitutional Rights because the
appellant had already been given plenty of time to confer with counsel.
ARGUMENT
I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING APPELLANT
ORTEGA A THIRD ADJOURNMENT TO LOCATE HIS ALIBI WITNESS, NOR DID IT
VIOLATE APPELLANT ORTEGA’S SIXTH AMENDMENT RIGHT.
When reviewing the appropriateness of a denial of an adjournment request, the appellate
court defers “to the discretion of the court, which is consistent with the general rule that the
granting or denial of any adjournment by a Trial Judge is a matter of discretion.” People v. Foy,
32 N.Y.2d 473, 476 (N.Y. 1973); citing People v. Jackson (111 N. Y. 362); also citing People v.
Oskroba, 305 N. Y. 113, 117.) A trial judge must consider three factors in making the decision to
allow a continuance: “‘(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 is deferred.’” People v. Foy, supra at 477; citing King v. D’Eon (1 W.
Black. 510). A review of the above cited three prong test in consideration of this case clearly
shows that the lower court judge did not abuse her discretion.
(1) Atrion Raimundi is not a material witness. It is obvious that the judge did not believe
the witness was material, as she denied a material witness warrant request. It is a judge’s duty to
consider all possibilities when making decisions on the materiality of witness and whether a
subpoena should be issued to ensure their appearance at the court. “The decision whether to grant
an adjournment lies in the sound discretion of the trial court, and the exercise of that discretion
‘in denying a request for an adjournment will not be overturned absent of showing prejudice’.”
People v. Adair, 84 A.D.3d 1752, 1754 (N.Y. App. Div. 4th Dep’t 2011); citing People v.
Arroyo, 161 AD2d 1127, 1127. The judge in this case made her decision regarding Atrion’s lack
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