People v. Esposito

• Decision Date: 09 May 1960
• Citation: 201 N.Y.S.2d 83,37 Misc.2d 386
• Parties: PEOPLE of the State of New York v. Louis ESPOSITO, Defendant.
• Court: New York County Court

Page 83

201 N.Y.S.2d 83

37 Misc.2d 386

PEOPLE of the State of New York v. Louis ESPOSITO, Defendant.

Queens County Court.

May 9, 1960.

Herbert A. Lyon, Long Island City, for defendant for the motion.

Frank D. O'Connor, Dist. Atty., Long Island City (Morton Greenspan, New York City, of counsel), opposed.

PETER T. FARRELL, Judge.

By this motion, defendant seeks an order dismissing an indictment, with prejudice. His application is grounded on the District Attorney's failure to bring him to trial thereon within 180 days after service, upon the prosecutor, of a notice of the place of defendant's imprisonment--in the State of New Jersey--and a request for a final disposition of the indictment. The decision turns upon an interpretation of the pertinent provisions of the Interstate Agreement on Detainers, pursuant to which defendant's notice and request was served. New York Code Crim.Proc. § 669-b; N.J.Stat.Ann. Title 2-A, c. 159A, §§ 159A-1 to 159A-15. ¹ Admittedly, the notice and request was received by the District Attorney of Queens County on May 21, 1959, but he did not secure temporary custody of the defendant nor bring him to trial within 180 days thereafter. The specific question is whether the prisoner's effort to employ the procedure established by the Interstate Agreement was effectively frustrated--and the local District Attorney's inaction excused-- by the New Jersey prison keeper's omission to perform certain duties imposed upon him by the Law, viz.:--(1) to accompany the notice and request by a certificate stating the term of commitment under which Esposito was being held in the New Jersey Prison, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the State Parole Agency relating to the prisoner (Agreement, Article III(a); (2) to forward the notice, request and certificate to the prosecutor (and appropriate court) by registered or certified mail, return receipt requested (Id., Article III(b); (3) to accompany the notice, request and certificate by an offer to deliver temporary custody of the prisoner to the local District Attorney, in order that a speedy and efficient prosecution might be had. (Id., Article V(a). I hold that, upon the facts of this case, the New Jersey Warden's omissions did not defeat the defendant's effort nor excuse the District Attorney's failure to take timely and effective action in accordance with the provisions of the Interstate Agreement. Accordingly, the motion is granted.

The indictment--filed December 1, 1958--accuses the defendant (and another) of Robbery, First Degree, and related felonies. When so indicted, he was at liberty on a consolidated bail-bond. Upon his appearance for arraignment on December 10, 1958, the matter was put over for a week but, within that week, defendant was convicted of a crime in the State of New Jersey, was sentenced therefor, and commenced service of the term of imprisonment imposed by the New Jersey Court. Consequently, he did not appear for arraignment upon the adjourned date. On January 15, 1959, the Director of the Division of Correction and Parole in the State of New Jersey sent to the Clerk of the County Court, Queens County, a copy of the Interstate Agreement on Detainers. His covering letter--referring specifically to this defendant--suggested that Esposito could be returned to face trial on the Queens County indictment in either one of two ways:--'The Court or your prosecutor can request temporary custody * * * under the provisions of Article IV * * * or the prisoner himself can notify the Warden of the New Jersey State Prison of his desire to be taken out and tried promptly as provided for in Article III.' ² No detainer based on the Queens County indictment was then on file with the Warden of the New Jersey Prison and, in fact, none was lodged with him until February 20, 1959. Nevertheless, on January 19, 1959, Esposito's attorney sent to him, at the New Jersey State Prison, a notice in duplicate, accompanied by a letter instructing the inmate to sign the notice and deliver it to the warden who would then take the necessary steps to have Esposito returned to Queens for trial. The notice was to the effect that the defendant wished to be brought to trial on the Queens County indictment. There is no contradiction of Esposito's sworn assertion that he followed these instructions, but there is no record of the receipt of any such notice by the District Attorney or the Clerk of the Court. There is no evidence that the warden took any action whatever with respect thereto. ³ And the defendant and his counsel let the matter rest in abeyance until May of 1959.

On the eighth of that month defendant's counsel sent a letter to the Warden of the New Jersey State Reformatory, at Rahway, New Jersey, to which place defendant had, meanwhile, been transferred. With the letter there were two enclosures. The first was a copy of a letter sent by the attorney to Esposito, instructing the latter to sign and deliver to the warden an enclosed 'letter', with the request that the warden mail it to the District Attorney of Queens County, to whom it was addressed. The second enclosure was a copy of the 'letter' just referred to. Actually, it was a notice of the place of Esposito's imprisonment and a request for final disposition of the Queens County indictment, pursuant to the provisions of Article III of the Agreement. It was dated May 11, 1959, and bore a footnote indicating that copies were forwarded, respectively, to the Warden of the New Jersey State Reformatory and to the County Court of Queens County, addressed in the latter case, to the Chief Clerk of the Court. On May 12, 1959, the Chief Clerk of the County Court received a copy of the counsel's communication to the defendant, but there is no record of the receipt from the warden, of any copy of the prisoner's notice and request. However, on May 21, 1959, the District Attorney received his copy from the warden, but by ordinary mail, and unaccompanied by any certificate setting forth the term of the commitment, etc. Moreover, the warden did not forward therewith, any offer to deliver temporary custody of the prisoner. On May 22, 1959, the District Attorney, by letter, requested the warden to supply information as to the term of Esposito's imprisonment, etc., and under date of May 28, 1959, adequate information on that subject was supplied, in letter form, by a New Jersey Prison official. Thereupon, the District Attorney supplied the Clerk of the County Court with copies of defendant's notice and request and of the letters passing between the District Attorney and the New Jersey Prison officials. But the prosecutor initiated no proceeding to secure temporary custody of the defendant until October 27, 1959.

On that day one of his assistants procured a judge of this court to certify and transmit to the Warden of the New Jersey State Prison a request for temporary custody, in accordance with the provisions of Article IV of the Interstate Agreement. In its first paragraph, the assistant alleged that Esposito, under date of May 14, 1959, had made a demand under Section 669-b of the (New York) Code of Criminal Procedure, that the indictment be disposed of. 'With reference thereto', the assistant went on to supply basic particulars of the charges contained in the indictment; he stated that he proposed to bring the defendant before the Queens County Court for arraignment and trial at the earliest possible date and, '(i)n order that proceedings in this matter may properly be had' he made the request for temporary custody. But the warden did not respond with any offer of temporary custody in accordance with the provisions of Article V of the Agreement, and the District Attorney let the matter rest until January 14, 1960. On that day he applied to another judge of this court for a writ of habeas corpus, commanding the New Jersey Prison official to produce the defendant, on a date specified, in the County Court of Queens County for arraignment and trial under the Queens County indictment. The application was denied because the judge to whom it had been presented was of the opinion that the defendant then had an accrued right to a dismissal of the indictment. In that state of affairs, the issuance of the writ would not only have been a vain act but might very well have been interpreted as a judicial act of cooperation in an effort to evade the sanctions of the Interstate Agreement. On March 2, 1960, the defendant served his notice of the motion now before the court, together with the papers in its support. On March 23, 1960, the Warden of the New Jersey State Prison acceded to the District Attorney's request--made October 27, 1959--for temporary custody of the defendant. Consistently with that decision he supplied the prosecutor with a certificate of the defendant's inmate status, dated March 23, 1960 (showing the expiration date of the New Jersey commitment to be July 3, 1960) and, on the same day, delivered Esposito over to the agents of the District Attorney who brought him before the court, forthwith. Upon his part, the defendant then asserted his rights under the Interstate Agreement. His motion to dismiss the indictment was argued after a delay, directed by the court (at the District Attorney's request), without prejudice to defendant's existing rights. His arraignment on the indictment has been postponed until after the determination of this motion. The District Attorney's opposition thereto is based upon a single premise.

He contends that Esposito's notice and request was fatally defective by reason of the New Jersey Warden's omissions, already outlined. Therefore, (so he urges) it should be ignored as a nullity. Consequently (he continues), the District Attorney's application of October 27, 1959, constitutes the only action taken under the Interstate Agreement and,...