People v. Escoto

• Decision Date: 26 May 1983
• Citation: 121 Misc.2d 957,470 N.Y.S.2d 270
• Parties: The PEOPLE of the State of New York v. William ESCOTO, Defendant.
• Court: New York Supreme Court

Page 270

470 N.Y.S.2d 270

121 Misc.2d 957

The PEOPLE of the State of New York v. William ESCOTO, Defendant.

Supreme Court of New York Westchester County.

May 26, 1983.

Asst. Dist. Atty. Thomas M. Bona for the People.

John L. Killea of Legal Aid, Scarsdale, for defendant.

DECISION AND ORDER ON SPEEDY TRIAL

DUNCAN S. McNAB, Justice.

The defendant has been indicted for the crimes of Robbery in the First Degree, Grand Larceny in the Second Degree, Grand Larceny in the Third Degree and Criminal Use of a Firearm in the First Degree. The defendant now moves to dismiss the indictment pursuant to CPL 210.20(1)(g), 30.30(1)(a) on the grounds that he was denied a speedy trial in that the People were not ready for trial within six months from the commencement of the action.

FACTS

It is alleged that the defendant, on Feb. 20, 1981 entered Beerman Jewelers in Yonkers, and forcibly stole property from Lena Moreira and Geraldine Lally, and during the commission of the crime displayed what appeared to be a firearm. During the course of the police investigation, the defendant was identified from a photo array by each of the victims on Feb. 28, 1981 and March 2, 1981. ¹

On March 5, 1981, a felony complaint was filed with Yonkers City Court charging the defendant with Robbery in the First Degree. A bench warrant was issued. The defendant's whereabouts remained unknown despite efforts by the Yonkers Warrant Squad to locate him. On March 5, 1982, the F.B.I. informed the Yonkers Police Department that the defendant was arrested in San Francisco under the name "William Ecoto." On Oct. 13, 1982, the Yonkers Warrant Squad was again advised by the F.B.I. that the defendant was arrested in New York City under the name "William Francisco." A warrant was lodged at Rikers Island on Oct. 20, 1982.

The case was presented to the grand jury on Nov. 30, 1982 and the present indictment was filed on December 7, 1982. The defendant was arraigned on the indictment on Jan. 10, 1983 and the People declared their readiness for trial.

The defendant had other unrelated charges pending. On Dec. 12, 1980, a bench warrant was issued by the Yonkers City Court for the crime of Possession of Burglar's Tools. On Feb. 4, 1980, a bench warrant was issued by the New York City Criminal Court for charges pending there.

ISSUE

Whether, under P. v. Sturgis, 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331, the delay of 21 months between the filing of the felony complaint (3-5-81) and the filing of the indictment (12-7-82) should be charged to the People where the defendant was never arrested or arraigned on the felony complaint and was unavailable for trial.

LAW

The defendant contends that the People were not ready for trial within 6 months from the date the criminal prosecution was started as required by CPL 30.30(1)(a). The filing of the felony complaint on 3-5-81 commenced this criminal action (CPL 1.20(17), P. v. Osgood, 52 N.Y.2d 37, 436 N.Y.S.2d 213, 417 N.E.2d 507). The People are not ready for trial until such time as an indictment has been filed (CPL 1.20(3)). Clearly, the People were not ready for trial within 6 months from the date the action was commenced. While the People do acknowledge that they did not mark the case until Dec. 27, 1982, they seek to exclude this period by relying on the tolling provision of CPL 30.30(4)(c), which reads as follows:

"4. In computing the time within which the People must be ready for trial ... the following periods must be excluded:

(C) the period of delay resulting from the absence or unavailability of the defendant. A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined with due diligence. A defendant must be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence."

It is incumbent upon the Court to determine at the outset if the defendant was unavailable, thus triggering the statute's tolling provision. Since the defendant has not raised any allegation to the contrary, by implication the defendant is conceding that the defendant was unavailable. Even without this concession, the Court is compelled to find that the defendant was unavailable for the entire period in question. The defendant's whereabouts were not known, despite the best efforts of the Yonkers Warrant Squad to locate him. Added to this is the fact that the defendant failed to make court appearances on other pending unrelated matters in Yonkers and New York City. When the defendant was located by the F.B.I. in San Francisco, he was using an alias. These facts evince an attempt by the defendant to avoid apprehension and a deliberate attempt to keep his whereabouts unknown. As such, this Court finds that the defendant was unavailable for the entire period in question.

Having determined that the defendant was unavailable it would seem to be a short step for the court to find, pursuant to CPL 30.30(4)(c), that the entire period is excluded, and thereby deny the defendant's motion. Such would be the determination if it were not for P. v. Sturgis, 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331, relied upon by the defendant. In Sturgis, the Court of Appeals held "... for the time to be excludable under CPL 30.30 (subd. 4, par. (c), there must be more than mere absence or unavailability. Explicitly, under the statute, delay must result therefrom. Defendant's absence ... did not result in a delay, attributable to her, since the finding of the indictment was in no way impeded or prevented by the absence." ² It is the defendant's contention that Sturgis stands for the proposition that because the delay in presenting the indictment was in excess of the statutory 6 month period, it must be charged to the People because the defendant's unavailability, as a matter of law, did not result from the defendant's absence. This Court does not agree that Sturgis should be so interpreted.

To interpret Sturgis as the defendant would have that decision interpreted takes the holding out of its factual context and expands it beyond its scope. In Sturgis, a felony complaint was filed on April 2, 1973. The defendant was arraigned on this felony complaint and subsequently became unavailable. The indictment was not presented to the Grand Jury until 11/2/73. The delay in presenting the case to the Grand Jury was not due to the defendant's unavailability but to the People's administrative failure to move the case. The court stated that the reasons for the delay, quoting from the People's affidavit:

"(t)he People contend that the court take cognizance of previous affidavits submitted ... indicating a backlog of cases, an inadequate staff and a system of priorities in the District Attorney's office." ³

The Sturgis court was saying that the defendant's unavailability did not impede the People from presenting this case to the Grand Jury; the delay resulted from other administrative problems in the District Attorney's Office. It just happens that the defendant was unavailable during the time that this matter was held for the action of the Grand Jury.

Other cases which have considered Sturgis have also come to the same conclusion. In P. v. Hamilton, 46 N.Y.2d 932, 415 N.Y.S.2d 208, 388 N.E.2d 345, the Court granted the defendant's motion to dismiss (on speedy trial grounds, i.e., the indictment was not filed within 6 months from the commencement of the action). In Hamilton, citing Sturgis, the court stated that the People's excuse, a need to investigate further, was not supported by the evidence. In P. v. Floyd, 61 A.D.2d 844, 402 N.Y.S.2d 418, the court, citing Sturgis, held that the unexplained delay of more than 6 months between the time that the defendant was held for the actions of the grand jury and the return of the indictment denied him a speedy trial. In that case, a felony complaint was filed on 11/28/75, and the felony hearing was concluded on 2/6/76. The indictment was not filed within 6 months from the conclusion of the felony hearing, and the People could not offer any reasons to justify the delay. Based upon these facts, the court's reliance on Sturgis to dismiss the indictment indicates that the court is interpreting Sturgis to mean that a dismissal will only be granted when the delay by the People results solely from the fault of the People to use due diligence in the prosecution of the felony complaint. In P. v. Blackford, 62 A.D.2d 1173, 404 N.Y.S.2d 469, a felony complaint (alleging an armed robbery) was filed in the Niagara Falls City Court on 2/13/75. At that time the defendant was incarcerated in the Erie County Holding Center, located in Buffalo on unrelated charges. The defendant was subsequently transferred to Attica Correctional Facility on 3/6/75. On 3/25/75, the Superintendent of the Attica Correctional Facility advised the Niagara County District Attorney that he received a detainer for the defendant for the pending charges there. On 11/3/75, an indictment was issued for the charges pending in Niagara County. The Court granted the defendant's motion to dismiss, citing Sturgis, because of the unexcused delay of 9 months before the commencement of the action and the time of filing the indictment. The district attorney conceded that there were no circumstances which would toll the statute. Based upon these facts, the court's reliance on Sturgis indicates that the court was reading Sturgis for the proposition that when there is an unexcused delay, caused by the People's lack of diligence to prosecute, failure to indict within the proscribed statutory 6 month period will result in a dismissal of the indictment. In P. v. Stanton, 71 A.D.2d 932, 419 N.Y.S.2d 717, the People alleged that the delay was caused by their need for a witness. The Court granted the motion to dismiss, again citing Sturgis, because there was ample evidence to indict without this witness. Once again,...