People v. Coleman

• Decision Date: 31 December 1991
• Citation: People v. Coleman, 577 N.Y.S.2d 900, 178 A.D.2d 842 (N.Y. App. Div. 1991)
• Parties: The PEOPLE of the State of New York, Respondent, v. Earl COLEMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 900

577 N.Y.S.2d 900

178 A.D.2d 842

The PEOPLE of the State of New York, Respondent, v.Earl COLEMAN, Appellant.

Supreme Court, Appellate Division Third Department.

Dec. 31, 1991.

Francis Clemente, Legal Aid Soc. Inc., Monticello, for appellant.

Stephen F. Lungen, Dist. Atty. (Claire Sullivan, of counsel), Monticello, for respondent.

Before CASEY, J.P., and MIKOLL, YESAWICH, LEVINE and CREW, JJ.

PER CURIAM.

Appeal from a judgment of the County Court of Sullivan County(Hanofee, J.), rendered March 17, 1988, (1) upon a verdict convicting defendant of the crimes of burglary in the second degree and criminal possession of stolen property in the first degree, and (2) convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the third degree.

Defendant was arrested at his sister's home the morning of July 15, 1986 in the Village of Liberty, Sullivan County.The arrest was prompted by a burglary that had occurred the day before near his sister's home.Defendant was ultimately indicted for burglary in the second degree and criminal possession of stolen property in the first degree (counts 1 and 2); in connection with unrelated events, he was also indicted for criminal possession of a weapon in the third degree and criminal sale of a firearm in the second degree (counts 3 and 4).Following a jury trial in January 1988, defendant was convicted on counts 1 and 2 which had been severed from counts 3 and 4.Thereafter, he entered into negotiations with the prosecutor regarding counts 3 and 4.In February 1988, defendant pleaded guilty to count 3 in full satisfaction of counts 3 and 4 and, in March 1988, defendant was sentenced as a second felony offender in accordance with the plea bargain to concurrent indeterminate terms of imprisonment of 5 to 10 years for count 1, 3 1/2 to 7 years for count 2, and 3 1/2 to 7 years for count 3 (in satisfaction of counts 3 and 4).Defendant's pro se notice of appeal states that he is appealing the convictions rendered on all three counts.

We reject defendant's contention that his statutory and constitutional rights to a speedy trial were infringed.The record is clear that the prosecution announced its readiness for trial, as required, within six months of the commencement of the case(see, People v. Giordano, 56 N.Y.2d 524, 525, 449 N.Y.S.2d 955, 434 N.E.2d 1333;People v. Campbell, 91 A.D.2d 1075, 1077, 458 N.Y.S.2d 322) and remained ready thereafter (see, People v. Anderson, 66 N.Y.2d 529, 535-536, 498 N.Y.S.2d 119, 488 N.E.2d 1231).Hence, there was no violation of his right to a speedy trial pursuant to CPL 30.30.

Nor do we find, upon balancing the factors to be considered in determining whether defendant's constitutional right to a speedy trial has been denied (see, People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303), that a speedy trial was not furnished.The 17 1/2-month pretrial delay and incarceration during that period do not in and of themselves entitle defendant to dismissal of the indictments (see, People v. Imbesi, 38 N.Y.2d 629, 631, 381 N.Y.S.2d 862, 345 N.E.2d 333).This delay was occasioned by defendant's efforts to arrange a plea bargain (see, People v. Jenner, 37 A.D.2d 786, 324 N.Y.S.2d 525), his various motions and requests for adjournments, normal court congestion and the unavailability of the transcript of the suppression hearing; no delinquency on the prosecution's part was shown.

Furthermore, the underlying charges are felonies and defendant is already a predicate felon.In addition, on July 18, 1986, three days after the beginning of his pretrial incarceration and as a result of the charges here at issue, defendant began to serve time for violating his parole release conditions; he had previously been convicted of robbery in the third degree.Finally, while defendant's own involvement in preparing his defense was necessarily limited by his confinement, no other impairment to his defense is apparent (see, People v. Taranovich, supra ).The fact that a witness for the People, whom the defense had planned to impeach, was unavailable to testify at trial worked no prejudice upon defendant.

Defendant's claim that he was denied a fair trial because he did not receive a transcript of the suppression hearing prior to trial is also lacking in merit.In People v. Sanders, 31 N.Y.2d 463, 466-467, 341 N.Y.S.2d 305, 293 N.E.2d 555, the Court of Appeals concluded that more definitive guidelines were necessary in order to avoid unwarranted delay resulting from last minute pretrial applications in criminal actions and declared that "[i]n the future, the defendant shall not only proceed with the requisite 'reasonable diligence' in making his pretrial suppression motion * * * but shall also make his request for a transcript of the minutes of any pretrial hearing prior to its conclusion " (id., at 467, 341 N.Y.S.2d 305, 293 N.E.2d 555[citation omitted][emphasis supplied].It is our view that compliance with this guideline requires a request either on the record at the suppression hearing or communicated in some other way to the suppression court prior to the conclusion of the suppression hearing.The only evidence of any request in the case at bar consists of a letter addressed to the court reporter.Although the letter is dated shortly before the last day of the hearing, there is no evidence that it was received or even mailed prior to the conclusion of the hearing.In any event, there is no evidence that the request was communicated to the suppression court prior to the conclusion of the hearing.

The authority and obligation to protect an indigent defendant's constitutional rights rest with the court, not a court reporter, and the refusal to comply with a timely request for the transcript constitutes a reversible error committed by the court(see, People v. Johnson, 88 A.D.2d 552, 450 N.Y.S.2d 334), which apparently is not subject to harmless error analysis (People v. Sanders, supra, 31 N.Y.2d at 466, 341 N.Y.S.2d 305, 293 N.E.2d 555;see, People v. West, 29 N.Y.2d 728, 729, 326 N.Y.S.2d 388, 276 N.E.2d 226).Because a failure to comply with an indigent defendant's request for a transcript of the suppression hearing results in the denial of a fundamental constitutional right and constitutes reversible error, it is our view that the timely request required to preserve the issue for review (see, Matter of Eric W., 68 N.Y.2d 633, 636, 505 N.Y.S.2d 60, 496 N.E.2d 219) must be communicated to the suppression court.

The record also contains two letters from defense counsel to County Court, but neither one requests a transcript.In any event, both letters were sent long after the suppression hearing had concluded and, therefore, could not be considered as timely requests sufficient to preserve the issue.Nor was the issue preserved by defendant's reference to the lack of the transcripts contained in his motion to dismiss on speedy trial grounds brought months after the suppression hearing, when he learned that the trial was...