People v. Darrah

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: STALEY; HERLIHY; HERLIHY
• Citation: People v. Darrah, 29 A.D.2d 816, 287 N.Y.S.2d 494 (N.Y. App. Div. 1968)
• Decision Date: 20 February 1968
• Parties: The PEOPLE of the State of New York, Respondent, v. Lawrence Richard DARRAH, Appellant.

Page 494

287 N.Y.S.2d 494

29 A.D.2d 816

The PEOPLE of the State of New York, Respondent, v. Lawrence Richard DARRAH, Appellant.

Supreme Court, Appellate Division, Third Department.

Feb. 20, 1968.

Thomas R. North, Clinton County Dist. Atty., for respondent (Dale T. Tucker, Plattsburgh, of counsel).

Andrew W. Ryan, Jr., Plattsburgh, for appellant.

Before GIBSON, P.J., and HERLIHY, AULISI and STALEY, JJ.

STALEY, Justice.

Appeal from a judgment of the County Court of Clinton County rendered on April 10, 1967 upon a verdict convicting defendant of grand larceny in the second degree, petit larceny, and two counts of unlawful entry.

The defendant was indicted by the Grand Jury of Clinton County in September 1965. Indictment number 47 charged the defendant with burglary, third degree (six counts), petit larceny (two counts), and grand larceny, second degree (two counts). Indictment number 34 also charged the defendant with criminally possessing a weapon as a felony. On September 30, 1965 both indictments were transferred from the Supreme Court, Clinton County to the County Court of Clinton County for disposition.

The principal issue raised on this appeal is whether or not the defendant was denied a speedy trial as provided by sections 8, 668, and 669--a of the Code of Criminal Procedure.

On October 21, 1965 defendant was arraigned and counsel assigned. The attorney so assigned was a candidate for legislative office and thereafter was elected thereto. During the period between October 21, 1965 and January 16, 1966, the defendant was returned to Franklin County for trial of an indictment pending there, and he pleaded guilty to the charge in Franklin County and was sentenced to Clinton Prison.

On January 16, 1966 defendant wrote a letter to the District Attorney of Clinton County advising him of his place of incarceration, and requesting that the charge in Clinton County be prosecuted immediately. The District Attorney replied to his letter, and stated that he would like to dispose of the charges at the February 1966 term of court. On May 24, 1966, because of defendant's assigned counsel's unavailability by reason of his legislative duties, defendant's present attorney was assigned in substitution. On August 31, 1966 defendant appeared in court with his counsel, and the District Attorney moved indictment number 34 for trial. Defendant moved to dismiss both indictments on the ground he had been denied a speedy trial which motion was denied. Defendant then moved to suppress certain evidence obtained in a search of defendant's house on July 7, 1965 which motion, after a hearing, was granted, and defendant's motion to dismiss indictment number 34 was then granted. The District Attorney then moved that indictment number 47 be put over to the next term of court to be held in October 1966. Defendant objected to this adjournment, again calling the court's attention to the time limitation of 180 days.

The people made no effort at the opening of the October 1966 term of court to move indictment 47 for trial and, on October 28, 1966, the defendant obtained an order to show cause returnable on November 15, 1966 for an order granting leave to inspect the Grand Jury minutes. The court reserved decision on this motion until it had an opportunity to review the minutes. On November 28, 1966, the District Attorney advised the court that the Grand Jury minutes had only been half transcribed, and the court put the case over to the February 1967 term of court, again over defendant's objection. On February 15, 1967 the court denied the defendant's motion to examine the Grand Jury minutes and set the case down for trial on February 27, 1967 at which time the case was tried, and defendant was found guilty of the crimes of unlawful entry (two counts), petit larceny, and grand larceny in the second degree.

On the issue on defendant's denial of a speedy trial, the People contend that the defendant did not serve notice as prescribed by section 669--a of the Code of Criminal Procedure, and that his letter written to the District Attorney did not comply with the notice requirements of that section. The People also contend that the only issues presented with regard to section 669--a are whether the defendant waived his right to a trial within the statutory period of 180 days and whether, if he did not waive his right, the delay was for good cause.

Implicit in the defendant's letter, is a request and demand for a speedy trial. Embodied in section 8 of the Code of Criminal Procedure is the guarantee of a speedy trial. The Legislature supplemented section 8 by enacting sections 668 and 669--a of the Code of Criminal Procedure. Section 668 provides: 'If a defendant, indicted for a crime whose trial has not been postponed upon his application, be not brought to trial at the next term of the court in which the indictment is triable, after it is found the court may, on application of the defendant, order the indictment to be dismissed, unless good cause to the contrary be shown.'

Section 669--a provides that a prisoner shall be brought to trial within 180 days after written notice of his request for a final disposition of his indictment has been given to the District Attorney 'provided, that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.' Although the defendant's letter to the District Attorney did not strictly comply with section 669--a, it was, nevertheless, effective to assert defendant's right under the statute. In any event, the defendant's motions to dismiss may be treated as a motion to dismiss under sections 8 and 668 of the Code of Criminal Procedure. A prisoner does not waive his right to move for a dismissal under section 668 either by first resorting to section 669--a or a failure to comply with the provisions of section 669--a. (People v. Bryant, 12 N.Y.S.2d 719, 233 N.Y.S.2d 771, 186 N.E.2d 127; ...