People v. Cullen

• Decision Date: 22 May 1979
• Citation: 416 N.Y.S.2d 1011,99 Misc.2d 646
• Parties: PEOPLE of the State of New York, v. Jeffrey CULLEN, Defendant.
• Court: New York Supreme Court

Page 1011

416 N.Y.S.2d 1011

99 Misc.2d 646

PEOPLE of the State of New York, v. Jeffrey CULLEN, Defendant.

Supreme Court, Criminal Term, Kings County, Part 52.

May 22, 1979.

Eugene Gold, Dist. Atty. by Jane S. Meyers and Patricia L. M. Dubose, Brooklyn, for the People.

William Leykam, Staten Island, for defendant.

AARON D. BERNSTEIN, Judge.

This is a motion by the defendant for an order dismissing the indictment pursuant to section 210.20(1)(g) of the Criminal Procedure Law on the ground that he has been denied a speedy trial. More particularly, the defendant claims that the delay of more than seventeen months between the date of his arrest and the date that the People announced that they were ready for trial is a clear violation of the Sixth and Fourteenth Amendments of the United States Constitution, the New York State Constitution, and sections 30.20 and 30.30 of the Criminal Procedure Law.

The instant proceeding arose out of an alleged robbery of a bicycle on March 27, 1977, for which the defendant was subsequently arrested and arraigned on a felony complaint (Docket No. K-749532) on September 26, 1977.

After several adjournments in the Criminal Court, this complaint was dismissed on December 2, 1977, because of the People's failure to prosecute. Thereafter, this case was presented to the Grand Jury, and an indictment charging the defendant with Robbery in the Third Degree and Grand Larceny in the Third Degree was filed on July 5, 1978. It is contended by the People that prior to the filing of the instant indictment, they conducted an exhaustive investigation into the whereabouts of this defendant, but were unable to locate him. For that reason, an indictment warrant was ordered on August 3, 1978.

On September 26, 1978, the defendant using the name of Jeffrey Smith was arrested for attempted burglary, to which he pled guilty and received a sentence of six months (Docket No. K-842579). The defendant was finally located at the Manhattan House of Detention and arraigned in this proceeding on January 24, 1979. After several adjournments at the direction of the court, the People announced that they were ready to proceed to trial on February 14, 1979.

A defendant's right to a speedy trial is guaranteed both by the United States and New York State Constitutions, and section 30.20 of the Criminal Procedure Law. That right is violated if there is an excessive delay between the institution of the prosecution and the trial.

Initially, it must be noted that there is a distinction between delays occurring prior to the institution of a prosecution and those occurring afterwards. Delay in bringing a defendant to trial after a proceeding has been instituted, whether by felony information or complaint, arrest, detainer warrant, or indictment, is generally measured against the Sixth Amendment speedy trial requirement (Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101), and more particularly against the limitations imposed by Criminal Procedure Law, section 30.30; People v. Sturgis, 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331. On the other hand, delay prior to the institution of a criminal proceeding is governed by the Due Process Clause 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; People v. Singer, 44 N.Y.2d 241, 405 N.Y.S.2d 17, 376 N.E.2d 179; People v. Staley, 41 N.Y.2d 789, 396 N.Y.S.2d 339, 364 N.E.2d 1111.

As applicable to this motion, Criminal Procedure Law section 30.30(1)(a) provides that where the People are not ready for trial within six months from the commencement of a criminal action charging a felony, the indictment must be dismissed. It is precisely this statutory concept, "commencement of a criminal action," which this Court is being requested to analyze in making its determination as to the point in time at which the jeopardy rule of CPL 30.30 attaches. The People contend that the criminal action herein was commenced by the filing of the indictment, so that the period of time between the arrest on September 26, 1977, and the filing of the indictment on July 5, 1978, should not be included when computing the six-month period of CPL 30.30. It is the defendant's contention that both the Criminal Court action under Docket No. K-749532 and the instant indictment are part of a single proceeding notwithstanding, the dismissal of the felony complaint on December 2, 1977, so that any time computation under CPL 30.30 must begin with September 26, 1977.

In this respect, CPL section 1.20(17) defines the term "commencement of a criminal action" by stating that, "(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." At first blush, this definitional section would appear to resolve the problem at hand, by invoking the rule that the filing of the first accusatory instrument controls the date when the computation of time under CPL 30.30 commences. However, such a simplistic rule avoids completely the distinction between felony complaints that are held for the Grand Jury after a hearing pursuant to CPL 180.60, and those complaints which are dismissed at the criminal court level, or when the course of the action terminates. In order to properly reconcile these two situations, it is necessary to examine the language of CPL 100.05, which incorporates in total the definition relating to "commencement of a criminal action," as embodied in CPL 1.20(17). Moreover, CPL 100.05 proceeds further by stating that, "(t)he only way in which a criminal action can be commenced in a superior court is by the filing therewith by a Grand Jury of an indictment against a defendant who has never been held by a local criminal court for the action of such Grand Jury with respect to any charge contained in such indictment. Otherwise, a criminal action can be commenced only in a local criminal court, by the filing therewith of a local criminal court accusatory instrument . . ."

When viewed through the linguistic filter of CPL section 100.05, it becomes readily apparent that the term "commencement of a criminal action," is a word of art that must be analyzed by construing the statutory language according to its natural and most obvious sense, without resorting to an artificial or forced construction. People v. Botazzi, 68 Misc.2d 106, 108-9, 324 N.Y.S.2d 118, 120.

Therefore, in construing a statute, we must take the entire act into consideration, People ex rel. Ingber v. Jackson, 5 A.D.2d 1019, 172 N.Y.S.2d 358; People v. Dethloff, 283 N.Y. 309, 315, 28 N.E.2d 850, 852, in order to determine the meaning of any of its parts. Whenever practicable, the court must give effect to all the language employed; a statute must be read so that each word therein will have a meaning and not so that one word or sentence will cancel and render meaningless another word or sentence, Matter of Albano v. Kirby, 36 N.Y.2d 526, 530, 369 N.Y.S.2d 655, 658, 330 N.E.2d 615, 618. So in the interpretation of a statute, the court must assume that the legislature did not deliberately place in the statute a phrase intended to serve no purpose, but must read each word and give to it a distinct and consistent meaning, McKinney's Cons. Laws of N.Y., Book 1, Statutes, section 98, p. 223.

Accordingly, the term "commencement of an action" as defined in both sections 1.20(17) and 100.05 of the Criminal Procedure Law has two possible points of reference when a proceeding in a superior court is involved. The first concerns a proceeding initiated in the local criminal court and which has been held for action by the Grand Jury. The second relates to the filing of an indictment directly in the supreme court. What is crucial is the source from which each criminal case emanates (see CPL 100.05, Practice Commentary by Richard G. Denzer; McKinney's Cons. Laws of NY, Book 11A, CPL, p. 364). Thus, where a case is dismissed in the criminal court, the proceeding has effectively been terminated and any subsequent indictment by the Grand Jury cannot be considered as emanating from the criminal court.

The precise parameters of any "criminal action" are found in CPL section 1.20(16) which states in pertinent part that a criminal action . . .

". . . (b) includes the filing of all further accusatory instruments directly derived from the initial one, and all proceedings, orders, and motions conducted or made by a criminal court in the course of disposing of any such accusatory instrument . . . And (c) terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case." (emphasis ours)

Clearly, therefore, it is the statutory mandate that where the criminal court makes a final disposition in a matter, i. e., dismissal due to a failure to prosecute, the criminal action has been effectively terminated, notwithstanding the fact that the charges for any underlying crimes can be renewed by an indictment.

Thus, the definition of section 1.20(17) is not in conflict with section 100.05. With the termination of the "action", there was only one accusatory instrument in the criminal court "action", and only one in the supreme court action. For this reason, the filing of the instant indictment on July 5, 1978, must be deemed to be the commencement of a new criminal action, which starts the running of CPL 30.30 from that point only. On the other hand, it is only where a case from criminal court is held for action by the Grand Jury that this statutory period starts to run from the commencement of the criminal court proceeding, because there is only one action, as there is no termination.

This interpretation of the statutory scheme has been adopted by Judge Gibbons of the Nassau County Court in the case of People...