People v. Agoglia

• Citation: 313 N.Y.S.2d 428,35 A.D.2d 583
• Parties: The PEOPLE, etc., Respondent, v. Robert AGOGLIA, Appellant.
• Decision Date: 20 July 1970
• Court: New York Supreme Court — Appellate Division

Page 428

313 N.Y.S.2d 428

35 A.D.2d 583

The PEOPLE, etc., Respondent, v. Robert AGOGLIA, Appellant.

Supreme Court, Appellate Division, Second Department.

July 20, 1970.

John M. Braisted, Jr., Dist. Atty., Richmond County, for respondent; Norman C. Morse, Asst. Dist. Atty., on the brief.

Milton Adler, New York City, for defendant-appellant; Robert H. Levy, New York City, of counsel.

Before CHRIST, P.J., and HOPKINS, RABIN, MUNDER and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant, as limited by his brief, from so much of a judgment of the Supreme Court, Richmond County, rendered April 27, 1967, as convicted him of attempted escape, a felony, under indictment No. 142/65, upon his plea of guilty, and imposed sentence. (The judgment also convicted appellant of unlawful entry, a misdemeanor, under indictment No. 102/63.)

Judgment reversed insofar as appealed from, on the law and the facts, and indictment No. 142/65 dismissed.

In our opinion the delay of 13 months and 20 days between arraignment and the time when the case appeared on the calendar for trial was due solely to the inaction of the District Attorney, who offers no valid excuse therefor. We find that this delay, under the total circumstances of this case, deprived defendant of his right to a speedy trial; and therefore the indictment (No. 142/65) should be dismissed (See People v. Wallace, 26 N.Y.2d 371, 310 N.Y.S.2d 484, 258 N.E.2d 904).

CHRIST, P.J., and HOPKINS, MUNDER and MARTUSCELLO, JJ.

RABIN, J., dissents and votes to affirm the judgment insofar as appealed from, with the following memorandum:

In my opinion, People v. Wallace, 26 N.Y.2d 371, 310 N.Y.S.2d 484, 258 N.E.2d 904 does not mandate that all delays in prosecution in excess of 11 months automatically warrant dismissal of an indictment for lack of a speedy trial. In Wallace it was reiterated that motions to dismiss for lack of prosecution are addressed to judicial discretion and that the People have the burden of showing justification for delay (id., p. 374, 310 N.Y.S.2d p. 486, 258 N.E.2d p. 905). At bar, it is my opinion that delay in the prosecution of appellant on the charge of escape was not solely occasioned by the inaction of the prosecutor and was in large measure ascribable to the persisting criminal activities of appellant.

On May 5, 1965, appellant was sentenced to a term of imprisonment by the Supreme Court, Kings County, for buying and receiving stolen property. In August, 1965 he was brought down from prison to the Supreme Court, Richmond County, to face trial on a 1963 Richmond County indictment, accusing him of burglary and larceny. In the Richmond County courthouse, he and two others overpowered a guard and escaped from detention. While at large, on September 20, 1965, appellant was arrested in Brooklyn for a robbery. On September 23, 1965, he was indicted in Richmond County for the escape and was arraigned on that charge the following day, when he was remanded to prison under the prior Kings County sentence. At that point in time, appellant remained with two undisposed of charges in Richmond County--the burglary and larceny charges and the escape accusation.

On February 23, 1966, the Richmond County prosecutor moved the burglary and larceny charges for trial, but appellant did not answer. On November 14, 1966, appellant was again called for trial on those charges and this time responded and initiated...