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

of materiality after listening to all the other witnesses and weighing their demeanor and
credibility. The judge makes the overall decision whether or not the witness is credible, and there
is no evidence that she was biased, so her decision that Atrion is not a material witness should be
upheld.
(2) Further evidence that the trial judge was correct to deny the third continuance request
is because Appellant is guilty of neglect. Although Atrion Raimundi was initially subpoenaed
and sent away and told to come back at a later date, no subpoena was issued thereafter.
Although calls were made to the witness and his family to guarantee his appearance, it was
clearly not enough. It could be argued that the failure of the Appellant’s attorney to take steps to
ensure Atrion’s presence in court by a new subpoena or other means was a factor in the Trial
Judge’s decision to deny a material witness warrant. In People v. Foy (supra at 478), they
concluded that “a request for a short adjournment... should not be denied merely because of
possible inconvenience to the court or others.” In fact, the court was not inconvenienced and
rather granted adjournments several times prior to deciding that the trial would proceed, because
it was necessary and the trial court wanted to make sure that the Appellant had was not unfairly
prejudiced. But since the defense did not exercise due diligence, when choosing not to take
preliminary steps like issuing another subpoena or other actions, the trial court did not abuse it’s
discretion in declining another adjournment.
(3) The court was within it’s rights to decline the third adjournment because the
Appellant cannot show that Atrion would be available at a trial set at a later date. In People v.
Foy, an alibi witness, Martin Lopez, had taken a day off from truck driving to appear in court. He
did not get the chance to testify that day, and could not afford to take another day off from work.
Although subpoenaed to testify at the following court date, he did not show up. The witness in
our case, Atrion, similarly would not show up to another court date, but for different reasons.
While the witness in People v. Foy would not be able to attend for financial reasons, Atrion will
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