People v. Drake

Decision Date29 March 1984
Citation61 N.Y.2d 359,462 N.E.2d 376,474 N.Y.S.2d 276
Parties, 462 N.E.2d 376 The PEOPLE of the State of New York, Respondent, v. Ralph H. DRAKE, Jr., Appellant.
CourtNew York Court of Appeals Court of Appeals
[462 N.E.2d 377] Sol Greenberg, Dist. Atty. (F. Patrick Jeffers, Asst. Dist. Atty., of counsel), for respondent

SIMONS, Judge.

Defendant is employed as a supervisor in the New York State Department of Taxation and Finance. In May, 1976, he was called for jury duty at a term of the Albany County Court. Under the policy prevailing at the time, State employees serving on jury duty received fully compensable leave time for the days actually served but were expected to return to work when the court did not require their presence. The prosecution claims that defendant stole portions of two salary checks by presenting a false time card which indicated that he was on jury duty on specified days when in fact he was not. It claims that defendant served as a juror for only four days but marked on his time card that he had served over 10 days. Finding that defendant was unlawfully paid for that six-day period, which represented noncompensable and unauthorized leave time, the Grand Jury indicted him for larceny by false pretenses (Penal Law, § 155.30, subd. 1; § 155.05, subd. 2, par. [a] ). Following a jury trial, he was found guilty of grand larceny in the third degree. Some 39 months later, he was sentenced to an unconditional discharge and thereafter the judgment was unanimously affirmed by the Appellate Division (92 A.D.2d 1011, 461 N.Y.S.2d 509).

Defendant contends before this court that his conviction rests upon insufficient evidence and, alternatively, that the judgment must be vacated and the indictment dismissed because of the court's unreasonable delay in sentencing him. Notwithstanding that defendant received the money before the false statements were made, the evidence before the jury sufficiently established that defendant received moneys of the State in the form of salary because of the State's reliance upon his false statements concerning jury service. Because of the State's system of payment, money previously erroneously paid was deducted upon examination of the employee's time card. As a result of defendant's false statements no deductions were made from his subsequent checks as was routinely done in such cases. Defendant's second point requires reversal, however, and remittitur to the trial court for a hearing to determine whether the unreasonable delay was excusable (C PL 470.40, subd. 1; 470.20). Once a person has been criminally charged and prosecuted, a burden rests upon the prosecutor and the court to conclude the proceedings with reasonable promptness and the failure to do so may result in a loss of jurisdiction. It is no excuse that the delay may have been occasioned by extended pleas for leniency. The prosecution having concluded, the court must pass sentence and enter judgment. If it fails to do so, the prosecutor may compel sentence by an article 78 proceeding (see Matter of Hogan v. Bohan, 305 N.Y. 110, 111 N.E.2d 233), but in all cases the initiative rests with the court and the prosecution, not the defendant. The delay of 39 months in this case was unreasonable and absent facts excusing it, the indictment must be dismissed.


Initially defendant challenges the legal sufficiency of the evidence to support a conviction of larceny by false pretenses. The crime is defined in section 155.05 (subd. 2, par. [a] ) of the Penal Law which expressly incorporates the common-law definition (see, also, People v. Churchill, 47 N.Y.2d 151, 417 N.Y.S.2d 221, 390 N.E.2d 1146). To convict, the prosecutor was required to prove that defendant obtained title or possession of money or personal property of another by means of an intentional false statement concerning a material fact upon which the victim relied in parting with the property (see People v. Miller, 169 N.Y. 339, 351, 62 N.E. 418; LaFave & Scott, Criminal Law, § 90, pp. 655-672). It has been held that the crime is committed when a party obtains money by presenting false and fraudulent vouchers for work done, materials purchased or services rendered (see People v. Hudson Val. Constr. Co., 165 App.Div. 626, 151 N.Y.S. 314, affd. 217 N.Y. 172, 111 N.E. 472; see, also, People v. Freeman, 133 App.Div. 630, 118 N.Y.S. 199, revd. on other grounds 203 N.Y. 267, 96 N.E. 413).

The evidence at trial established that defendant received money wrongfully. We are concerned only with the element of reliance and whether the money was paid to him by the State relying upon the false representations in his time card. To contrast this case and People v. Hudson Val. Constr. Co. (supra), the checks in Hudson Val. were delivered to defendant construction company after the alleged false voucher was submitted. The distinction does not affect culpability, however, because the trial evidence established that had defendant correctly reported his absences from work, the State would have deducted a portion of his salary from a subsequent paycheck. Thus, as noted by the Appellate Division, the larceny was complete and arguably only the date of its occurrence remained unsettled. It occurred during the pay period covering the unauthorized absences or alternatively in the next period when the deduction normally would have been made. In either event, defendant wrongfully received funds from his employer because of his false statements. Defendant has raised no objection to the precise date of the crime's occurrence, either here or in the courts below, and the discrepancy is not fatal because time is not a material element of the crime charged (see People v. Feldman, 50 N.Y.2d 500, 504, 429 N.Y.S.2d 602, 407 N.E.2d 448; People v. La Marca, 3 N.Y.2d 452, 458-459, 165 N.Y.S.2d 753, 144 N.E.2d 420, cert. den. 355 U.S. 920, 78 S.Ct. 351, 2 L.Ed.2d 279).


Defendant was indicted on June 15, 1978, trial began on December 4, 1978, and a guilty verdict was rendered on December 5, 1978. Ten days later, defense counsel moved to dismiss the indictment in the interest of justice and moved for a new trial. His motion was denied in all respects. On March 19, 1982, the day before sentencing, defense counsel moved to dismiss the proceeding on the ground that the court had lost jurisdiction over the defendant because of unreasonable delay. The motion was denied. The next day, the Judge, implying that neither he nor the People were responsible, stated cryptically that the 39-month delay resulted from the fact that three different defense attorneys had approached him and requested that he grant an order of dismissal in this case as he had done in the case of a codefendant. He then sentenced defendant to an unconditional discharge. The court's response to the motion hardly excused a delay of over three years.

Defendant is entitled to be promptly sentenced after conviction; entry of judgment may not be "indefinitely deferred or postponed" (Matter of Hogan v. Bohan, 305 N.Y. 110, 112, 111 N.E.2d 233, supra; see, also, People ex rel. Prosser v. Martin, 306 N.Y. 710, 117 N.E.2d 902). To this end, CPL 380.30 (subd. 1) requires that "[s]entence must be pronounced without unreasonable delay" and we have held that a failure to do so results in a loss of jurisdiction over the defendant (People ex rel. Harty v. Fay, 10 N.Y.2d 374, 223 N.Y.S.2d 468, 179 N.E.2d 483; but see Matter of Weinstein v. Haft, 60 N.Y.2d 625, 467 N.Y.S.2d 350, 454 N.E.2d 933, affg. 93 A.D.2d 786, 462 N.Y.S.2d 3).

In People ex rel. Harty (supra), relator entered a plea of guilty to the crime of robbery in the second degree on February 10, 1953, in Bronx County. The court set a date in April, 1953, for sentencing, but relator was tried on another robbery charge in March and subsequently pleaded guilty to still another robbery in Westchester County. Upon his plea, he was sentenced to an indefinite term of five years at Elmira Reception Center and later transferred to West Coxsackie. Although certain warrants had been lodged against relator as detainers, the Bronx County authorities took no action concerning the 1953 indictment and plea until 1958 when he was released on parole and brought in on other charges. On November 19, 1959, six and one-half years after his 1953 plea, relator was sentenced in Bronx County. In a habeas corpus proceeding, he sought to invalidate the sentence on the ground of unreasonable and unexplained delay. We granted the petition and held that the long and unnecessary delay in imposing sentence was not only error but resulted in a loss of jurisdiction. The rule followed is not unlike that underlying speedy trial rules generally. Indeed, many State and Federal courts, relying upon dictum in Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393, hold that the Sixth Amendment guarantee of a speedy trial applies to postconviction proceedings as well and apply the speedy trial criteria set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, i.e., the length of the delay, reason for the delay, the defendant's assertion of the right and prejudice to him, to assess claims of unreasonable delay in imposing sentence (see, e.g., Gonzales v. State, 582 P.2d 630 [Alaska]; Reed v. State, 295 A.2d 657 [Me]; State v. Cunningham, 405 A.2d 706 [Del.Super.]; United States v. Reese, 568 F.2d 1246 [6th Cir.]; Cessna v. Commonwealth, 465 S.W.2d 283 [Ky]; Erbe v. State, 276 Md. 541, 350 A.2d 640).

There are perceptible distinctions, however, between speedy trial concepts and the requirement of timely sentencing. Speedy trial requirements focus upon the need for a prompt trial so that witnesses are available, possible exoneration is swift and the public's interest in deliberate prosecution is fulfilled. After a defendant is convicted, the focus shifts to the defendant's right to appeal, his...

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