People v. Dean

• Decision Date: 06 December 1978
• Citation: 384 N.E.2d 1277,412 N.Y.S.2d 353,45 N.Y.2d 651
• Parties: , 384 N.E.2d 1277 The PEOPLE of the State of New York, Respondent, v. Paul R. DEAN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 353

412 N.Y.S.2d 353

45 N.Y.2d 651, 384 N.E.2d 1277

The PEOPLE of the State of New York, Respondent, v. Paul R. DEAN, Appellant.

Court of Appeals of New York.

Dec. 6, 1978.

Edward J. Nowak, Public Defender, for appellant

Lawrence T. Kurlander, Dist. Atty. (Adam H. Bernstein and Kenneth R. Fisher, Rochester, of counsel), for respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

On September 21, 1973, a Monroe County Grand Jury returned indictments No. 533 through No. 538 against the defendant, charging him with 38 counts of grand larceny in the second degree in violation of section 155.35 of the Penal Law, six counts of issuing a bad check in violation of section 190.05 of the Penal Law, and two counts of grand larceny in the third degree in violation of section 155.30 of the Penal Law. Some two years later the defendant was brought to trial on indictment No. 534, and was convicted of three counts of grand larceny in the second degree. It is this conviction which is the subject of this appeal and we must decide whether the delay between his indictment and January 15, 1976, when this trial commenced, violated his right to a speedy trial.

To understand the reasons for the delay requires a summary of the events that occurred between indictment and trial. The defendant was arraigned on September 24, 1973, and after pleading not guilty to all counts of the indictments he was released on a $25,000 bond. Following certain pretrial motions a trial on indictment No. 533 began on May 8, 1974. The jury returned a verdict of not guilty on May 31. A trial on indictment No. 535 was then commenced on September 18, 1974, concluding on September 27, 1974. That indictment charged the defendant with having committed the crimes of grand larceny and issuing a bad check when he paid a $60,503.56 obligation to the Insana Company with a worthless check, knowing it to be worthless. The jury found him not guilty of grand larceny but guilty of the misdemeanor of issuing a bad check. On November 26, 1974 the defendant was sentenced to 90 days in the Monroe County Penitentiary. Following an affirmance of that conviction he surrendered and commenced service of the sentence on June 12, 1975.

Before trial commenced on the instant indictment the defendant moved for an order dismissing the indictment. By application dated September 9, 1975, he asserted that the lapse of two years since indictment and arraignment violated the right to a speedy trial guaranteed by statutes and the Federal Constitution (CPL 30.20; 30.30; Civil Rights Law, § 12; People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891; U.S.Const., 6th Amdt.; Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101). The motion to dismiss was denied, and following a trial the defendant was convicted of three counts of grand larceny. The Appellate Division unanimously affirmed the conviction and leave to appeal was granted by an Associate Judge of this court.

The most exacting requirement of the speedy trial right is found in CPL 30.30 which provides that a motion to dismiss must be granted where the People are not ready for trial within six months and the defendant is accused of a felony. It establishes a precise cutoff for unexcused delay. If the People are not ready for trial within the time sanctioned by the statute, the indictment must be dismissed and the defendant released.

At first blush, it would appear that dismissal might be warranted here. Defendant's motion to dismiss recited a delay in excess of six months from the date of indictment. In opposition to the motion the People, at the hearing, stated that they were always ready for trial, and that the calendar had been so marked. They did not submit any papers or records in opposition, relying on the factual statement made and a display of their readiness for trial; and the hearing ensued.

We recently held that where a defendant has moved for a dismissal it may be summarily granted if the answering papers do not present a factual dispute for the court to resolve (People v. Gruden, 42 N.Y.2d 214, 397 N.Y.S.2d 704, 366 N.E.2d 794; CPL 210.45, subd. 4, par. (c)). In Gruden (p. 215, 397 N.Y.S.2d p. 705, 366 N.E.2d p. 795), however, and unlike the case before us, the court pointed out that "(t)he People did not dispute the facts alleged in the defendants' motion papers". CPL 30.30 has been described as the most significant criminal legislation of 1971 (Denzer, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A, CPL 30.30), yet it could become a mockery if an assertion of readiness, without any substantiation, excuses needless delay. If an unexcused delay in excess of six months had been shown by clear documentary proof by the defendant, his motion would doubtless have been granted. In this case, however, the actual period of unexcused delay was less than six months, as will be herein demonstrated. Defendant's inability to show any ground constituting legal basis for the motion renders academic the question of the People's preparedness, and the motion was properly denied (cf. People v. Gruden, supra ; CPL 210.45, subd. 5, par. (a)).

The actual elapsed time between indictment and trial for speedy trial purposes must be computed in light of CPL 30.30 (subd. 4), ¹ which requires that the certain delays described in that section be excluded from the time limitation. Subdivision 4 recognizes that certain delays are inherent in any criminal justice system and must be tolerated, and that other delays are caused by the defendant and should not prejudice the People's right to bring him to trial.

Important here is the reasonable delay resulting from other proceedings concerning the defendant, including pretrial motions, trial of other charges, and the period during which such matters are under consideration by the court, as well as certain appeals. Taking these factors into account in the instant case shows that during the great majority of time at issue the defendant was involved in trials or appeals involving his other indictments, and there was thus ample reason for the People not to move indictment No. 534 to trial.

Following his September 24, 1973 arraignment the defendant made an application for relief by pretrial motion. After oral argument and a period when the motion was under consideration, the first indictment was set down for trial on May 8, 1974. Thus the delay prior to defendant's first trial on indictment No. 533 was excused, it being devoted to the preparation, argument, and consideration of defendant's motion directed at the six indictments.

The first trial was concluded on May 31, 1974. It was followed by a hiatus until September 18, 1974, for which no excuse appears in the record. Presumably, the activities of the District Attorney in respect to this defendant were spent preparing for the trial on indictment No. 535 which commenced September 18. This period is not, however, an excusable delay within the contemplation of the statute, and therefore the three and one-half months are to be counted as part of the six-month period.

The trial which began on September 18 was completed on September 27. He was found guilty of the crime of issuing a bad check to the Insana Company in an amount exceeding $60,000. On the day of sentencing defendant filed a notice of appeal as well as an application for release on bail during the pendency of said appeal. Significantly, the bail application advanced the argument which was to be the main ground for appeal: that a corporate officer may not be held criminally liable for issuing a bad check when he is neither the drawer nor a representative drawer, in circumstances where he did not sign the check personally. Upon appeal from that judgment, the Appellate Division discussed this issue and argument at some length before rejecting it in an opinion issued May 30, 1975 (People v. Dean, 48 A.D.2d 223, 368 N.Y.S.2d 349). Following the unanimous Appellate Division affirmance of his conviction the defendant sought leave to appeal to this court by application dated June 25, 1975. Again, he urged the same issue of lack of "personal involvement" in challenging the conviction. However, the criminal leave application was denied on November 13, 1975 finally terminating that case.

The appellate history of the Insana indictment is necessary for an...