People v. Boykin
| Decision Date | 16 November 1979 |
| Citation | 102 Misc.2d 381,423 N.Y.S.2d 366 |
| Parties | The PEOPLE of the State of New York v. Darryl BOYKIN, Defendant. |
| Court | New York Supreme Court |
Robert Morgenthau, Dist. Atty., New York County, New York City, for the People; Sanford N. Gold, Asst. Dist. Atty., New York City, of counsel.
Joseph I. Stone, New York City, for defendant.
The defendant is charged with the crime of Criminal Sale of a Controlled Substance in the Third Degree. This is a motion to dismiss the indictment upon the ground that the defendant has been denied his right to a speedy trial. CPL § 170.30(1)(d) and § 210.20(1)(g).
The issue is, where a felony complaint is dismissed in the Criminal Court, and subsequently an indictment is filed with the Supreme Court, does the speedy trial limiting period (CPL § 30.30) commence with the filing of the felony complaint or with the filing of the indictment? Diligent research by this court has failed to disclose a decision dealing with this precise issue by either the Court of Appeals or the Appellate Division, First Department, thus making this an apparent case of first impression in the First Department.
The facts of the case are not complex. The defendant was arrested, and a felony complaint was filed with the Criminal Court on October 19, 1978. The complaint was dismissed on December 12, 1978 for failure to prosecute. On March 1, 1979 an indictment was filed with the Supreme Court. The People were ready to proceed to trial on August 8, 1979.
It is the position of both sides that the timeliness of the prosecution of this case hinges on whether the time limits involved are to be measured from the filing of the first or the second accusatory instrument.
Whereas the facts of this case are simple, the law is not. We begin our inquiry with CPL § 30.30(1)(a) which states that the commencement of the criminal action marks the beginning of the six month limiting period. Commencement in turn is defined in CPL § 1.20(17) as follows:
"A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court, and, if more than one accusatory instrument is filed in the course of the action, it commences when the first of such instruments is filed."
A similar definition is found in CPL § 100.05.
This section has been interpreted in People v. Osgood, App.Div., 420 N.Y.S.2d 398 (2d Dept., 1979) to mean that where the Criminal Court holds a defendant for action by a grand jury and an indictment is subsequently filed with a Supreme Court the felony complaint marks the commencement of the action. However, where the felony complaint is dismissed there is not an action in existence when the indictment is filed, and the indictment marks the commencement of a totally new six month period.
To like effect are People v. Cullen, 99 Misc.2d 646, 416 N.Y.S.2d 1011; People v. Nizza, 95 Misc.2d 74, 407 N.Y.S.2d 388; and People v. Laskowski, 72 Misc.2d 580, 340 N.Y.S.2d 787.
The confusion in this area of the law arises from the holdings in People v. Rodney, 94 Misc.2d 994, 406 N.Y.S.2d 955 and the language in several decisions by the U.S. Supreme Court and our own Court of Appeals. In Rodney (supra) the court held that where the initial felony complaint was dismissed for failure to prosecute and a subsequent indictment charging the same offense was filed, the six month period continued to run from the commencement of the initial criminal proceedings.
The position of the court in Rodney (supra) while finding support in the language of several other cases, was specifically rejected by a higher court in the recent case of People v. Osgood (supra).
Other courts have held "it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment." (United States v. Marion, 404 U.S. 307, 320-321, 92 S.Ct. 455, 463, 30 L.Ed.2d 468); "Once a suspect has been proceeded against in some sort of judicial proceeding as an accused, either by arrest, indictment or other pretrial proceeding, he is entitled, in the absence of prosecutorial justification or excuse, to reasonably prompt prosecution of the charges against him." (People v. Staley, 41...
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