People v. Barnett

• Decision Date: 24 March 1987
• Citation: 517 N.Y.S.2d 849,135 Misc.2d 1127
• Parties: PEOPLE of the State of New York v. Lawrence BARNETT, Dennis Thomas, Alexie Therman, Defendants.
• Court: New York City Court

Page 849

517 N.Y.S.2d 849

135 Misc.2d 1127

PEOPLE of the State of New York v. Lawrence BARNETT, Dennis Thomas, Alexie Therman, Defendants.

Criminal Court of the City of New York Kings County.

March 24, 1987.

Elizabeth Holtzman, Dist. Atty., Kings County by Peter Chatzinoff, for the People.

Harvey Rivera, Brooklyn, for defendant Lawrence Barnett.

Lisa Beth Older, New York City, for defendant Dennis Thomas.

Caesar D. Cirigliano, Legal Aid Society, Brooklyn by James T. Snyder, for defendant Alexie Therman.

JEROME M. KAY, Judge.

Defendants Lawrence Barnett, Dennis Thomas and Alexie Therman, charged with P.L. 120.00, Assault in the Third Degree, and P.L. 265.01, Criminal Possession of a Weapon in the Fourth Degree (2 counts), move this court to dismiss the charges against them contending that their CPL 30.30 right to a speedy trial has been violated.

Defendants were arrested and charged with felonies on August 16, 1986; the charges, however, were reduced to the above-mentioned misdemeanors on October 1, 1986 at which time the defendants were rearraigned. A corroborating affidavit was filed and a contemporaneous statement of readiness was made by the People on January 14, 1987.

Pursuant to CPL 30.30(5)(c), the People had 90 days from the filing of the new accusatory instrument containing the reduced charges (October 1, 1986 plus 90 days or December 30, 1986) plus any excludable time. The record reveals that on October 23, 1986, defendant Lawrence Barnett was absent and a bench warrant was ordered but stayed. The matter was adjourned for 32 days by the court until November 25, 1986. Defendants Thomas and Therman, however, were present on October 23, 1986. While the People concede that the bulk of the time between October 1, 1986 and January 14, 1987 should be charged to them, they do take exception to the 32 day period between October 23, 1986 and November 25, 1986 contending that defendant Barnett's absence rendered the 32 day period excludable with reference to him pursuant to CPL 30.30(4)(c) and excludable with reference to defendants Thomas and Therman pursuant to CPL 30.30(4)(d), thereby extending the People's time within which to be ready on the case to January 31, 1987.

CPL 30.30(4)(d) reads:

"... the following periods must be excluded ... (d) a reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial pursuant to this section has not run and good cause is not shown for granting a severance...."

Because of the paucity of cases written on CPL 30.30(4)(d), the court has examined its federal counterpart, The Federal Speedy Trial Act of 1974, 18 U.S.C. Sec. 3161 Subdivision h(7), which states in pertinent part:

(h) "The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:

* * *

(7) A reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial has not run and no motion for severance has been granted."

Case law regarding this federal statute states that this provision creates a unitary speedy trial clock in a criminal action for all defendants whereby exclusion of time for one defendant is applicable to all defendants. People v. Balagula, 629 F.Supp. 394 (1986, NY), citing United States v. Payden, 620 F.Supp. 1426 (S.D.N.Y.1985); United States v. Piteo, 726 F.2d 50 (2d Cir.1983), cert. denied, 466 U.S. 905, 104 S.Ct. 1682, 80 L.Ed.2d 156 (1984); United States v. Novak, 715 F.2d 810 (3d Cir.1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1293, 79 L.Ed.2d 694 (1984). See also United States v. Zielie, 734 F.2d 1447 (11th Cir.1984); United States v. Sutton, 801 F.2d 1346 (App. DC 1986). The underlying reason for this, as stated by the court, is that there is a strong congressional preference for joint trials and for "avoiding waste of resources on unnecessary severances and separate trials." People v. Balagula, supra, citing United States v. Rush, 738 F.2d 497 (1st Cir.1984), cert. denied, 470 U.S 1004, 105 S.Ct. 1355, 84 L.Ed.2d 378 (1985); United States v. Campbell, 706 F.2d 1138 (11th Cir.1983). See also United States v. Scott, 784 F.2d 787 (7th Cir.1986).

Following this reasoning, it is logical that CPL 30.30 also contemplates a singular trial clock which is evidenced by its very wording, "... motion ... must be granted where the people are not ready for trial within ... of the commencement of a criminal action ...." Similarly, in the CPL's definition of a "criminal action" and "commencement of a criminal action" (CPL 1.20 Subdivisions 16 and 17) it is the court's opinion that the New York Legislature also contemplated a singular starting point for the action. The filing of the initial accusatory instrument signals the commencement of the action notwithstanding the addition of subsequent instruments derived from the initial one, which revert back to the singular starting point for CPL 30.30 purposes. Furthermore, the Court of Appeals in People v. Osgood, 52 N.Y.2d 37, 436 N.Y.S.2d 213, 417 N.E.2d 507, makes it quite clear that for one set of criminal charges, there is but one criminal action.

In a criminal action involving multiple defendants, the "action" travels through the system as a unit (unless of course, severance has been requested and granted). It would be anomalous in that situation to bifurcate the action among the different defendants during the course of the proceedings merely because one of the co-defendants creates a delay. In examining People v. Bravman, 89 Misc.2d 596, 599, 393 N.Y.S.2d 266, a case involving multiple defendants, the court notes the following:

"The history of the instant case has shown a series of successive adjournments requested by the several defense lawyers involved. The case is typical of many the Court has seen where the difficulty of procuring the attendance of several busy practitioners to try a case involving multiple defendants results in long adjournments. It cannot have been the intent of the Legislature in drafting Section 30.30 that the remedy for such a situation is a dismissal of the indictment. I therefor conclude that adjournments attributable to one or more defendants are excludable time as to all other defendants who did not object thereto." (Emphasis supplied)

The Bravman court goes on to state that "implicit in is an expression of legislative intent not to allow one defendant's successive requests for adjournments to inure to the benefit of his co-defendants on a motion to dismiss." Consequently, it is the opinion of this court that, for CPL 30.30 purposes, a case generally has only one beginning and one end. The number of defendants involved usually is not dispositive of the number of criminal actions that stem from a set of criminal charges.

In United States v. Balagula, supra, the court, in referring to 18 U.S.C.S. 3161(h)(7) stated that "it has held that the 'reasonableness' requirement of (h)(7) does not apply where ... there has been no motion for severance." The court cited United States v. Payden, supra, which stated that...