People v. Abbatiello

• Citation: 289 N.Y.S.2d 287,30 A.D.2d 11
• Parties: The PEOPLE of the State of New York, Respondent, v. Dominick ABBATIELLO, Defendant-Appellant.
• Decision Date: 23 April 1968
• Court: New York Supreme Court Appellate Division

Page 287

289 N.Y.S.2d 287

30 A.D.2d 11

The PEOPLE of the State of New York, Respondent, v. Dominick ABBATIELLO, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

April 23, 1968.

Henry A. Freedman, New York City, of counsel (Anthony F. Marra, New York City, attorney), for appellant.

Alan F. Scribner, New York City, of counsel (H. Richard Uviller, New York City, with him on the brief, Frank S. Hogan, Dist. Atty.), for respondent.

Before BOTEIN, P.J., and STEVENS, EAGER, McGIVERN and RABIN, JJ.

EAGER, Justice.

The defendant was convicted, after a trial before court and jury, of manslaughter in the first degree. Appealing from the judgment of conviction, the defendant raises the point, among others, that he was denied his right to a speedy trial, contending that the court improperly denied his motion to dismiss the indictment for failure to prosecute.

The defendant was apprehended on September 26, 1964, and on the following day was arraigned in the Criminal Court upon a complaint of a police officer charging him with homicide. The defendant was duly represented by an attorney and the matter of a preliminary hearing upon the charge was continued from time to time. On an adjourned date for the hearing, December 1, 1964, the district attorney requested an adjournment to December 11th. The defendant's attorney stated on the record that he had been informed that the case was pending before the grand jury and that he would consent to the adjournment to December 11th 'only on the stipulation * * * if there is no indictment, the District Attorney's office will be ready and prepared to conduct a hearing'. The district attorney replied that there would either 'be an indictment or a transfer, which is a reduction, or a dismissal. In any event, if this case is before the Grand Jury, we will dispose of this case on that date', to which defendant's attorney replied, 'Eleventh is agreeable.' In the meantime, and on December 10, 1964, the defendant was indicted for murder in the first degree. He was arraigned on such indictment on the following day and pleaded not guilty.

The pre-indictment delay does not furnish grounds for an attack upon the conviction. A defendant has no constitutional or statutory right to a preliminary hearing as a condition precedent to a valid indictment. (See Goldsby v. United States, 160 U.S. 70, 73, 16 S.Ct. 216, 40 L.Ed. 343; United States ex rel. Hughes v. Gault, 271 U.S. 142, 149, 46 S.Ct. 459, 70 L.Ed. 875; Garrison v. Johnston, 9 Cir., 104 F.2d 128, 130; People ex rel. Hirschberg v. Close, 1 N.Y.2d 258, 152 N.Y.S.2d 1, 134 N.E.2d 818; Matter of Widziewicz v. Golding, 52 Misc.2d 837, 841, 277 N.Y.S.2d 62, 66; People v. Edwards, 19 Misc.2d 412, 189 N.Y.S.2d 39.) Prior to the indictment, however, the defendant could have moved, pursuant to Code of Criminal Procedure (§§ 222--d, 667), for a dismissal of the prosecution because of the failure to obtain an indictment against him 'at the next term of the court.' But he made no such motion and, as aforenoted, his attorney stated that it was 'agreeable' that the hearing be adjourned to give the grand jury an opportunity to consider the matter. The failure to hold a preliminary hearing did not immunize the defendant from indictment or bar prosecution under the indictment which was returned. Under the circumstances here, the pre-indictment delay did not deprive the defendant of due process, and such delay was nullified by the return of the indictment. (See People v. Saccenti, 14 N.Y.2d 1, 247 N.Y.S.2d 479, 196 N.E.2d 885, cert. denied 379 U.S. 854, 85 S.Ct. 104, 13 L.Ed.2d 57. Cf. People v. Winfrey, 20 N.Y.2d 138, 141, 281 N.Y.S.2d 823, 826, 228 N.E.2d 808, 810.)

Following the indictment, the defendant by motion, submitted on February 17, 1965, applied for a dismissal thereof for insufficiency of evidence, for an inspection of the minutes of the grand jury, and for a bill of particulars and a discovery and inspection. The motion, insofar as it sought a dismissal of the indictment and an inspection of the grand jury minutes was denied, but the court granted a bill of particulars and a discovery and inspection (46 Misc.2d 148, 259 N.Y.S.2d 203). The order was entered on April 5, 1965, but it does not appear when the bill of particulars was served or when and if the discovery and inspection was had.

The district attorney delayed in placing the indictment upon the calendar for trial and, by motion returnable on October 8, 1965, the defendant moved to dismiss the indictment for failure of prosecution. This motion was brought on by a written notice of motion and an affidavit by defendant's attorney alleging that the defendant had not been brought to trial on the indictment although more than nine terms of the court had passed since his arraignment upon the indictment.

On the return of the motion, the People had the burden of showing 'good cause' why the indictment had not been promptly brought on for trial as required by law. (Code of Criminal Procedure, § 668; People v. Prosser, 309 N.Y. 353, 358, 130 N.E.2d 891, 894, 57 A.L.R.2d 295; People v. Darrah, 29 A.D.2d 816, 287 N.Y.S.2d 494; People v. Mudra, 12 Misc.2d 438, 177 N.Y.S.2d 224.) Where, as here, a motion is properly made by written notice of motion and affidavit, the district attorney, if he opposes the motion, should submit affidavits or other proofs explaining the cause for the delay. (People v. Cowan, 21 A.D.2d 687, 250 N.Y.S.2d 628.) 'The inquiry in each case is factual' (People v. Prosser, 309 N.Y. 353, 360, 130 N.E.2d 891, 896, 57 A.L.R.2d 295) and the facts relative to delay should be properly established. 'Records, proper in form and content will thus be before us; and the rights of both the People and the defendant will tend, on appeal, to be better secured * * *.' (People v. Cowan, supra.)

An assistant district attorney appeared on the return of the motion to dismiss, but did not submit an affidavit or any proof in opposition. However, he asked the court to take notice of the fact that he had been on trial constantly for many months; that he was 'going on trial in another matter on the 18th of this month'; that it 'may be that I will be able to follow with this case * * * but I must dispose of my older issues first.' The court stated that it would take judicial notice of the delay in criminal trials due to court congestion and of the 'overabundance of murder and (that) there is only a certain number of qualified members of the District Attorney's office that could try them and, with due respect to the members of the Bar, there is only a certain number of qualified members of the Bar to defend.'

On the basis of the record, however, it is not necessary to reach the question of whether the specific reasons advanced by the district attorney or stated by the court furnished proper justification for the delay in prosecution of the indictment. We conclude that the denial of defendant's motion was justified, in the exercise of the court's discretion, on the ground that the defendant acquiesced in the postponement of the trial.

The discussion on the return of the motion on October 8th resulted in a request by defendant's attorney that the case be put on for the November term. He stated: 'At least, we know that the case is on the Trial Calendar: that's all the motion requested. * * * Pick a November date--we are not going to be held to it.' The assistant district attorney then noted that he was going to trial in Part 36 on October 18th and the court, without objection or further suggestion by defendant's counsel, set the case down for October 29th in Part 36, the court stating that this 'is for the benefit of Counsel * * *. See if you can arrange for some definite date.' Thereupon, the motion to dismiss for lack of prosecution was denied.

A motion to dismiss...