People v. Bryant

• Citation: 65 A.D.2d 333,411 N.Y.S.2d 932
• Parties: The PEOPLE, etc., Appellant, v. William BRYANT, Respondent.
• Decision Date: 29 December 1978
• Court: New York Supreme Court — Appellate Division

Page 932

411 N.Y.S.2d 932

65 A.D.2d 333

The PEOPLE, etc., Appellant, v. William BRYANT, Respondent.

Supreme Court, Appellate Division, Second Department.

Dec. 29, 1978.

Carl A. Vergari, Dist. Atty., White Plains (Gerald D. Reilly and Anthony J. Servino, White Plains, of counsel), for appellant.

Stephen J. Pittari, The Legal Aid Society of Westchester County, White Plains (Robert W. Stieve, White Plains, of counsel), for respondent.

Before MARTUSCELLO, J. P., and TITONE, ROBIN and HAWKINS, JJ.

RABIN, Justice.

This is an appeal from an order of the County Court, Westchester, County, dated April 24, 1978, which dismissed the indictment. The order should be reversed and the indictment reinstated.

The issue on appeal is whether a preindictment delay of almost seven months between the date of the alleged criminal transactions and the commencement of the criminal proceeding, so violated the defendant's due process rights as to require dismissal of the indictment.

Upon the defendant's motion to dismiss the indictment, the County Court properly conducted a hearing (see People v. Charette 57 A.D.2d 594, 393 N.Y.S.2d 604) ^* at which the defendant and an undercover police officer testified. The defendant essentially testified that some time in October, 1976 a friend and two undercover police officers came to his house in Greenburgh, New York. The friend asked the defendant if he had any cocaine or knew where cocaine could be purchased. The defendant said that he did not have any and did not know where cocaine could be purchased, unless they went to New York City. The defendant agreed to accompany the three men to New York City. They drove to the vicinity of 180th Street and 8th Avenue, where the men gave the defendant money to purchase cocaine. The defendant completed the transaction and the four men then returned to Greenburgh. Although the defendant did not know the person who sold him the drugs, he had a fair recollection of his appearance.

Several days later, one of the officers again asked the defendant to complete a cocaine purchase and again the defendant complied. On this occasion, the defendant took the railroad to New York City and met the undercover officer upon his return to Greenburgh. As with the prior transaction, the defendant did not know the identity of the person who sold him the cocaine.

On cross-examination, the defendant gave a fairly detailed account of the events surrounding both transactions. This account included testimony that the transfer of the drugs from the defendant to the undercover officer on the second transaction was made at the apartment of the defendant's sister and that she was present in the apartment while the officer took the package and tested the cocaine.

Only after his arrest did the defendant learn that his friend was a confidential police informant and that the other two men were undercover police officers. When the record is read as a whole, it appears that the defendant will seek to defeat a criminal prosecution by raising the affirmative defense of agency.

The undercover police officer who had participated in both purchases testified that he had worked as an undercover officer in varying capacities (e. g., narcotics, gambling, stolen property, etc.) for several years. The alleged transactions with the defendant were part of an ongoing narcotics investigation which continued in the general vicinity of the defendant's residence for approximately six months subsequent to the alleged purchases. At the end of this period, the undercover officer submitted his papers to the office of the District Attorney. Approximately one month later, the defendant was indicted for two counts each of criminally selling a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree.

At the conclusion of the hearing, the court determined that the seven-month delay was not satisfactorily explained and that the defendant was prejudiced by the delay. Holding that the defendant's due process right to a prompt prosecution was thus violated, the court dismissed the indictment. The order of dismissal should be reversed and the indictment reinstated.

It is well established that the Sixth Amendment right to a speedy trial protects a defendant from only that delay which occurs after the commencement of a criminal proceeding (see United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468; United States v. Lovasco,431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752). However, the instant delay occurred prior to the commencement of the criminal proceeding. Therefore, the constitutional guarantee of a speedy trial, and the cases decided thereunder, are entirely inapplicable to the disposition of the present case. Also irrelevant are those statutory provisions (e. g., CPL 30.20, 30.30) which seek to implement the more intangible safeguards of the Sixth Amendment.

Traditionally, the only redress for preindictment delay was the dictates of the various Statutes of Limitation, which in this case is essentially unlimited (see CPL 30.10, subd. 2, par. (a)). More recently, the due process clause has been used to further safeguard a defendant's right to a speedy prosecution. It is upon the due process clause which the defendant must rely (cf. People v. Alderson, 55 A.D.2d 977, 390 N.Y.S.2d 272).

When analyzing due process claims, New York courts have generally employed a balancing test involving various factors which "much be evaluated on an Ad hoc basis since no rigid precepts may be formulated which apply to each and every instance" (People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 81, 335 N.E.2d 303, 305; see, also, People v. Staley, 41 N.Y.2d 789, 396 N.Y.S.2d 339, 364 N.E.2d 1111). In terms of a defendant's due process right to a prompt prosecution after the occurrence of the criminal transaction, there are four factors of primary importance: (1) the length of the delay; (2) the reason for the delay; (3) the degree of actual prejudice to the defendant; and (4) the seriousness of the underlying offense. The New York approach is significantly broader than the Federal rule as enunciated by the Supreme Court of the United States. Whereas the New York courts consider actual prejudice as only one of several relevant factors, Federal courts require a showing of actual prejudice as a prerequisite to a dismissal of an indictment on the due process ground of delay between the criminal transaction and the commencement of a criminal proceeding (see United States v. Lovasco, Supra ).

Typical of these divergent approaches are those few New York cases which allow the dismissal of the indictment because of an unreasonably protracted delay, but in the absence of a showing of actual prejudice (see People v. Singer, 44 N.Y.2d 241, 405 N.Y.S.2d 17, 376 N.E.2d 179; People v. Staley, Supra ). The rationale of these cases is not that actual prejudice is not a vital consideration in determining whether a defendant's preindictment due process rights have been violated, but, rather, that the unexcused delay is so lengthy as to itself constitute a due process violation regardless of the additional element of prejudice (see People v. Singer, Supra ). These cases implicitly balance the factors of delay and prejudice to the defendant and the prosecution, but conclude merely that the unexcused delay outweighs all other considerations. This result stems from the presumption of potential prejudice inherent in any lengthy delay, coupled with the recognition that an unduly long and unexcused delay in the prosecution of criminal offenders is contrary to various public policies (see People v. Singer, Supra, p. 254, 405 N.Y.S.2d p. 25, 376 N.E.2d pp. 186-187).

When the above-enumerated criteria are analyzed in the present case, it is apparent that no single factor is so compelling as to be dispositive. However, when the factors are fully balanced, there is no question that the defendant's due process rights have not been violated.

Generally, there is no "per se period beyond which a criminal prosecution may not be pursued" (People v. Taranovich, Supra, 37 N.Y.2d p. 445, 373 N.Y.S.2d p. 82, 335 N.E.2d p. 306). The criminal Statute of Limitations provides only the outside limit on when a prosecution must be commenced and such period is largely irrelevant to the due process claim of preindictment delay. Here we are faced with a delay of only seven months between the date of the alleged transactions and the commencement of the criminal proceeding. This delay is considerably shorter than in those cases where the preindictment delay has constituted the sole basis for dismissing the indictment (see, e. g., People v. Singer, Supra, a 42-month delay; People v. Staley, Supra, a 31-month delay). Furthermore, it must be emphasized that few of the considerations which make a lengthy delay harmful are relevant to the present situation. For instance, the defendant was not incarcerated nor was his liberty or freedom of conduct inhibited in any way. The defendant was not subjected to police interrogation or to the threat of prosecution. In short, there was absolutely no interference, physical or psychological, with the defendant's life-style during the seven-month period. In this context, it is apparent that the period of delay was of fairly short duration.

The County Court's conclusion that there was no good faith excuse for the delay must be rejected. In terms of a preindictment delay, the excuse need only be reasonable and made in good faith. Unlike a situation involving a postindictment delay, there is no stringent statutory requirement of demonstrating exceptional circumstances (CPL 30.30, subd. 4, par. (g)). In the instant situation of delay prior to the commencement of the criminal proceeding, the rigors of what constitute "exceptional circumstances" when applying the fairly inflexible time limitations...