People v. Frederick
| Decision Date | 26 May 1992 |
| Citation | 585 N.Y.S.2d 982,154 Misc.2d 513 |
| Parties | The PEOPLE of the State of New York v. Ronald FREDERICK, Defendant. |
| Court | New York Supreme Court |
Charles J. Hynes, Dist. Atty. by Jeffrey T. Kern, Eric Wachtel, Brooklyn, for the People.
Robert M. Baum, Legal Aid Soc. by Stephen Dean, Brooklyn, for defendant.
Defendant moves to dismiss the indictment on the grounds that he has been denied his statutory right to a speedy trial (CPL 30.30; 210.20).
In considering this motion the Court has considered defendant's moving papers, the People's reply, a stipulation of facts dated March 18, 1992 and the minutes of proceedings from June 26, 1990, July 18, 1990, August 2, 1990, August 14, 1990, September 18, 1990, October 23, 1990 and the defendant's and People's memoranda of law.
The People are required to announce their readiness for trial within six months of the commencement of a criminal proceeding charging the defendant with a felony, less certain excludable periods (People v. Gaggi, 104 A.D.2d 422, 423, 478 N.Y.S.2d 732). The six month period begins to run from the filing of the first accusatory instrument against a defendant in a criminal court.
In this case the time began to run on May 8, 1990 when a felony complaint was filed. The allowable six-calendar month statutory limitation in this case, therefore, (May 8, 1990 to November 9, 1990) totals 184 days (People v. Pappas, 128 A.D.2d 556, 558, 512 N.Y.S.2d 493).
On June 5, 1990 defendant was arraigned on this indictment (5608/90) and another indictment (5620/90). At the arraignment defendant was taken into custody, and remains incarcerated until this day.
The People announced their readiness for trial on June 26, 1990 on both indictments. This court finds it was a valid statement of readiness in that it met the two-prong test enunciated in People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287. There was a communication of readiness by the People which appeared on the court's record, and the People were in fact ready to proceed. Defendant does not challenge the People's readiness to proceed, but does question the statement of readiness wherein the People stated "ready on both indictments". This court holds that the plain meaning of the term "both indictments" means the two companion indictments 5608/90 and 5620/90. Had the People meant to refer to the two defendants named in indictment # 5620/90, they would have stated "ready as to both defendants".
On June 26, 1990 indictment # 5620/90 was adjourned to Part 26 for July 6, 1990. This indictment was scheduled for July 18 in Part ACA 120. The separation to different parts occurred because of the necessity of the co-defendant on indictment # 5620/90 to have 18-B counsel appointed.
Both cases were on the calendar several times. On July 18, 1990 under indictment 5608/90, the People failed to produce defendant in court. The instant matter was adjourned until August 2, 1990 when the People again failed to produce defendant. The case was next on August 10th, when the People failed to produce defendant. On August 10th, the Court ordered a bench warrant for defendant that was to be lodged with the Department of Corrections. The bench warrant was issued on August 15, 1990.
From August 10, 1990 until April 16, 1991, there was no action taken on this indictment, even though the parties knew the defendant's location and informed the presiding justice in part 26 of this fact. During that period the defendant continued to be produced under indictment 5620/90 in Part 26, and that case was on the calendar frequently. On April 16, 1991, this case again appeared in court, the defendant was produced, and the bench warrant vacated.
The period from August 10th, 1990, until April 16, 1991 during which no action was taken on this indictment is critical to determining the outcome of defendant's motion. If that eight-month period is chargeable to the People, then the indictment exceeds the statutory period in which the People must answer ready and the indictment must be dismissed (People v. Pappas, 128 A.D.2d 556 supra, at 558, 512 N.Y.S.2d 493). If the critical period is not charged to the People, then the People are within the six calendar month statutory period, and the motion must be denied.
In People v. Bolden, 174 A.D.2d 111, 578 N.Y.S.2d 914, lv. granted, 79 N.Y.2d 997, 584 N.Y.S.2d 452, 594 N.E.2d 946, the court held "the People must only demonstrate that a bench warrant has been issued in order to exclude delays attributable to a defendant's failure to appear after the issuance of the warrant" on a 30.30 motion. That decision is based on the court's interpretation of CPL 30.30(4)(c). CPL 30.30(4)(c) (now) reads in pertinent part:
CPL 30.30(4)(c) includes only defendants who have escaped from custody or have previously been released on bail or on their own recognizance. Since Bolden is based on 4(c), and that section covers only escapees and defendants released on bail or recognizance, Bolden is also limited.
In the within matter defendant has been incarcerated since his arraignment and continues to remain in custody. The within warrant was issued for an incarcerated defendant, not an escapee or a person released on bail or recognizance. Therefore, Bolden is not applicable.
In addition, Bolden presupposes a legal bench warrant. In the instant case, the warrant was issued erroneously (CPL 550.10, 510.50, 560.10) and is illegal. CPL 550.10 and 510.50 authorize the issuance of a bench warrant only when a defendant is at liberty within the State as a result of an order releasing him on his own recognizance, or on bail (CPL 550.10(2)(b)). If the defendant is confined to the custody of the sheriff, then his appearance in court is secured by a court order directing the sheriff to produce him (CPL 550.10(2)(b)). The proper method of securing a person is in accordance with Article 560. The bench warrant issued in this case was improper and a nullity and therefore, in law, did not exist. * Bolden is therefore inapplicable.
The delay in this case was caused by the failure to produce defendant and the court's erroneous issuance of a bench warrant. The issuance of the invalid bench warrant occurred after a statement of readiness. Generally, the People are not charged with post-readiness court error (People v. Chang, 176 A.D.2d 951, 575 N.Y.S.2d 559; People v. Hudson, 162 A.D.2d 617, 556 N.Y.S.2d 942; People v. Smith, 97 A.D.2d 485, 468 N.Y.S.2d 129). However, the People are charged with any post readiness delays based on a failure to produce an incarcerated defendant (People v. McKenna, 76 N.Y.2d 59, 64, 556 N.Y.S.2d 514, 555 N.E.2d 911; People v. Wojciechowski, 132 A.D.2d 586, 588, 517 N.Y.S.2d 565, after remand 143 A.D.2d 164, 166, 531 N.Y.S.2d 613, lv. denied 73 N.Y.2d 861, 537 N.Y.S.2d 507, 534 N.E.2d 346; People v. Bryant, 139 A.D.2d 750, 751, 527 N.Y.S.2d 500; People v. Anderson, 66 N.Y.2d 529, 540, 498 N.Y.S.2d 119, 488 N.E.2d 1231; People v. Traficante, 147...
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