People v. Fluellen

• Decision Date: 05 April 1990
• Citation: 553 N.Y.S.2d 670,160 A.D.2d 219
• Parties: The PEOPLE of the State of New York, Appellant, v. George FLUELLEN, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 670

553 N.Y.S.2d 670

160 A.D.2d 219

The PEOPLE of the State of New York, Appellant, v. George FLUELLEN, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

April 5, 1990.

S. Wertheimer, New York City, for appellant.

K. Crowley, for defendant-respondent.

Before ROSS, J.P., and ASCH, MILONAS, ROSENBERGER and ELLERIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Rena Uviller, J.) entered December 18, 1987, which dismissed the indictment on the basis of violation of defendant's right to a speedy trial pursuant to CPL § 30.30, unanimously reversed, on the law, the indictment reinstated, and the case remanded to the Supreme Court for further proceedings.

In the early morning hours of November 13, 1986, police officers approached defendant and three other men on a Manhattan street corner. As the officers approached, the men reached into a nearby garbage pail. When one of the officers inspected the pail, he recovered three loaded .38 caliber revolvers. Upon a search, it was discovered that defendant was wearing a bullet proof vest and was carrying 14 rounds of .38 caliber ammunition on his person. All four men were arrested.

On November 14, 1986, defendant and the three others--Owens, Buckner, and Roche--were arraigned on a felony complaint charging each of them with Criminal Possession of a Weapon in the Third Degree. At that time, all four served written notice of their intention to testify before the Grand Jury.

On November 18, 1986, the prosecutor presented to the Grand Jury all of the police testimony relevant to the People's case. By this date, defendant had already withdrawn his grand jury notice, but two co-defendants, Owens and Buckner, still indicated that they wished to testify before the Grand Jury. In light of their stated intention to testify, the prosecutor did not ask the Grand Jury to vote, and instead kept the case open.

Between November 18 and December 5, 1986, when the Grand Jury term ended, the prosecutor attempted to arrange with counsel for Owens and Buckner to testify. The only response received was from Owens' attorney that Owens would be available to testify on January 9, 1987, a date after the Grand Jury term would have concluded. For that reason, on the last day of the term (December 5, 1986), the prosecutor withdrew the case from the Grand Jury.

On the adjourned date of January 9, Owens and Buckner withdrew their requests to testify before the Grand Jury.

On January 28, 1987, the People moved ex parte before Justice Soloff for leave to re-submit the case before another Grand Jury, in accord with the procedure set forth in People v. Wilkins, 68 N.Y.2d 269, 508 N.Y.S.2d 893, 501 N.E.2d 542 and CPL § 190.75(3). The motion was pending until March 11, 1987, when Justice Soloff ruled that in this case the motion was required to be made on notice. After proper notice was given, and defense counsel answered on April 1, 1987, Justice Soloff ultimately granted the motion on April 24, 1987, finding that the People had proffered a legitimate reason for the withdrawal from the first Grand Jury. On May 12, 1987, the new Grand Jury returned an indictment charging defendant with the instant crime, and on June 18, 1987 the People answered ready for trial. Thereafter, defendant made the instant motion to dismiss the indictment for failure to provide him a speedy trial. The People contended that the delays occasioned by the co-defendants' failure to testify before the Grand Jury and the People's subsequent efforts to re-present the case were excludable as an "exceptional circumstance".

The motion court granted the defendant's speedy trial motion and dismissed the indictment. The court acknowledged that in some cases pre-indictment delay occasioned by a co-defendants' request, and then failure, to testify before the Grand Jury may constitute an "exceptional circumstance" within the meaning of CPL § 30.30(4)(g) and may therefore be rendered excludable, citing People v. Regan, 110 Misc.2d 12, 441 N.Y.S.2d 607. However, the court concluded that the delay here did not qualify as such an "exceptional circumstance", based upon its finding that the prosecutor's resolve to proceed against the co-defendants was not firm and that the People should have requested the first Grand Jury to vote an indictment against defendant Fluellen alone before the expiration of its term. The court held that the entire period from arraignment, on November 14, 1986, until the time the People answered "ready", on June 18, 1987, (a period of 216 days) was chargeable to the People and that a dismissal of the indictment was required pursuant to CPL § 30.30(1)(a).

We find that the motion court improperly charged to the People both the period of delay occasioned by the co-defendants' stated desire to testify before the Grand Jury and other time periods in the subsequent proceedings necessitated thereby.

CPL § 30.30(4)(g) provides that "periods of delay occasioned by exceptional circumstances, including but not limited to, the period of delay resulting from a continuance * * * granted because of the unavailability of evidence material to the People's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period * * * ". Under the factual circumstances...