Consequences of a Defendant Escaping from Custody or Jumping Bail When Court Issues a Bench Warrant

In People v. Sturgis (38 NY2d 625), the Court of Appeals held that for time to be excludable under CPL 30.30 (4) (c), more than mere absence or unavailability on the part of a defendant must be shown. The delay must result from the defendant's absence or unavailability (id.). In Sturgis, the defendant, after being charged by felony complaint, absconded. Because the defendant's absence, deliberate as it was, did not prevent the People from presenting the case to the Grand Jury, the time was still chargeable to the People (see also, People v. Colon, 59 NY2d 921; People v. Williams, 56 NY2d 824). Not surprisingly, there was a strong reaction to Sturgis. Accordingly, in 1984, the Legislature amended paragraph (c) of subdivision (4) to provide that where a defendant either escaped from custody or failed to appear after being released on bail or recognizance and the court issued a bench warrant, the time between issuance of the bench warrant to defendant's next appearance in court would not count against the People for CPL 30.30 purposes (see, L 1984, ch 670). The Governor's Memorandum opined that the amendment would legislatively overrule Sturgis and Colon and resolve the problems caused by those decisions. However, this amendment applied only to cases where a defendant was arraigned on a charge and later failed to appear. As Professor Preiser noted, the amendment did not apply to cases where a complaint was filed and an arrest warrant for a defendant's arrest was issued but the defendant had never appeared in court (Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 30.30, at 172). In those situations, the action is commenced when the complaint is filed and the People are still obligated to be ready within the applicable period (id.). In 1985, the Court of Appeals decided two cases that narrowed this loophole. In People v. Bratton (65 NY2d 675, affg for reasons stated in 103 AD2d 368) and People v. Leone (65 NY2d 674, affg for reasons stated in 105 AD2d 757), the Court held that an office policy of not presenting to a Grand Jury cases against absent defendants satisfied the causation requirement contained in the statute (i.e., "a period of delay resulting from the absence or unavailability of the defendant" [emphasis supplied]; CPL 30.30 [4] [c] [i]; see also, Preiser, Practice Commentaries, supra). However, Professor Preiser noted that the amendment did not change the fact that a defendant must be "absent" or "unavailable" under the statute before the People could avail themselves of the exclusion. In 1993, in People v. Bolden (81 NY2d 146), the Court of Appeals, interpreting the 1984 amendments to CPL 30.30, held that notwithstanding a defendant's failure to appear in court after being released on his own recognizance, the time between the issuance of a bench warrant and the defendant's return on the warrant is not excludable under CPL 30.30 unless the People establish "due diligence" in attempting to locate the defendant. A similar result was reached in People v. Luperon (85 NY2d 71), where the time between the issuance of the bench warrant and the date when efforts were initiated to execute the warrant was charged against the People.