People v. Ganci

• Decision Date: 20 January 1971
• Citation: 267 N.E.2d 263,27 N.Y.2d 418,318 N.Y.S.2d 484
• Parties: , 267 N.E.2d 263 The PEOPLE of the State of New York, Respondent, v. William Anthony GANCI, Defendant-Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 484

318 N.Y.S.2d 484

27 N.Y.2d 418, 267 N.E.2d 263

The PEOPLE of the State of New York, Respondent, v. William Anthony GANCI, Defendant-Appellant.

Court of Appeals of New York.

Jan. 20, 1971.

Certiorari Denied April 19, 1971. See 91 S.Ct. 1398.

Susan E. Crandall, New York City, James J. McDonough and Matthew Muraskin, Mineola, for appellant.

William Cahn, Dist. Atty. (Henry P. DeVine, Mineola, and Jules E. Orenstein, Great Neck, of counsel), for respondent.

BERGAN, Judge.

Defendant was arraigned in the Nassau County Court June 13, 1967 on an indictment charging robbery, larceny and assault. His trial began some 16 months later, September 30, 1968. He was convicted and sentenced. The main question on appeal is appellant's contention that the delay unreasonably deprived him of his constitutional and statutory right to a prompt trial.

Since appellant would have been in prison under a conviction on an unrelated charge during all the period between arraignment and trial, the question of incarceration or release on bail or other recognizance during the period before trial is not presented. On April 28, 1967 he had been sentenced to five years in prison in Suffolk County for another felony, and was brought from prison for arraignment June 13. It was while on bail between conviction and sentence in Suffolk that this present crime was committed March 18, 1967.

Although the personal disability of incarceration without bail while awaiting trial is one of the 'threefold purposes' underlying the constitutional and statutory rule for prompt trial, as Judge Fuld wrote in People v Prosser (309 N.Y. 353, 356, 130 N.E.2d 891, 893--894), a man in prison on another charge is also entitled to prompt trial for the reasons developed in Prosser. Subsequent case law is in this direction (People v. Wallace, 26 N.Y.2d 371, 310 N.Y.S.2d 484, 258 N.E.2d 904; People v. Winfrey, 20 N.Y.2d 138, 281 N.Y.S.2d 823, 228 N.E.2d 808; People v. Bryant, 12 N.Y.2d 719, 233 N.Y.S.2d 771, 186 N.E.2d 127; People v. Peters, 16 A.D.2d 171, 226 N.Y.S.2d 971; People v. Masselli, 11 A.D.2d 722, 204 N.Y.S.2d 698).

In the cases of undue trial delay that have arisen, some failure or inadvertence has been attributable to the prosecutor. (People v. Wallace, Supra; People v. Winfrey, Supra; People v. Bryant, Supra; People v. Piscitello, 7 N.Y.2d 387, 198 N.Y.S.2d 273, 165 N.E.2d 849.) This element is especially notable in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1, where the prosecutor's purpose was to keep the charge indefinitely in suspense under a Nolle prosequi.

But it is not possible to attribute the 16-month delay shown on this record to the prosecutor who was steadily ready for trial. Nor is it attributable to the defendant who also was consistently ready for trial with the exception of short periods while counsel were being substituted--periods which played no significant part in the total delay. Defendant also promptly moved for dismissal for failure to prosecute under the Code of Criminal Procedure ( § 668); and renewed the motion at time of trial.

This long delay, despite the readiness of counsel and the willingness of Judges to hear the case, is attributable to the congestion of the criminal trial calendar in Nassau County and the well-founded policy to process indictments in the sequence of their presentment. The total situation, in turn, may reasonably be charged to the rapid growth of the county in population, to the increase in crime, and to the State and community lag in providing additional facilities to process criminal cases--Judges, prosecutors, defense counsel, stenographers, probation officers, court officers and court rooms.

In opposition to the first motion to dismiss, the assistant district attorney stated that 'The Grand Jury of Nassau County is currently handing down 900 indictments per year' ^* and in view of the 'tremendous work load' calendars 'show a delay of up to six months in jail cases and eighteen months in non-jail cases'.

Therefore, he felt there was 'good cause' under section 668 of the Code of Criminal Procedure why the indictment should not be dismissed. That such delay is, indeed, caused by calendar congestion is additionally suggested by the newspaper articles made part of appellant's appendix which show strenuous efforts to cut delay down.

The affirmance of the judgment by the Appellate Division, therefore, must be read as a finding that the delay is not here chargeable to the prosecutor and that it occurred for reasons beyond his control or the control of the court; hence that there was 'good cause' shown under code section 668 for not dismissing the indictment.

But the failure of the State and local governments to provide services and facilities rapidly enough to keep apace with the volume of crime is not a categorically complete answer to the need for prompt trial and practical means must be found in the legal system to minimize undue delay in trial. Both Federal and State judicial agencies are currently addressing themselves to this acute public problem.

On October 17, 1970, Chief Judge Fuld, Chairman of the Administrative Board of the Judicial Conference, announced the board was attempting to eliminate delays in criminal case disposition by recommendation for legislative action and administrative action within the judicial system. The board, as the Chief Judge has added in a supplementary statement, is formulating the imposition of an over-all time limit on criminal trials in State courts and the conditions under which they would be imposed, including the effect to be given to time consumed by pretrial procedures followed by the accused. Such a rule will be promulgated, however, in consultation with agencies representing both prosecutors and defense counsel.

On January 5, 1971 the United States Court of Appeals for the Second Circuit decided United States ex rel. Frizer v. McMann, 437 F.2d 1312, an appeal in a habeas corpus proceeding addressed to a New York State judgment. The court (per Lumbard, Ch. J.) carefully analyzed the causes of delay in New York prosecutions, but left it to the State to devise procedures to meet Federal prompt trial requirements. On the same day the Circuit Council of that Circuit promulgated rules in pursuance of the United States Code (tit. 28, § 332) requiring the prompt prosecution of Federal criminal cases and fixing applicable time limits.

The imposition of undeviating time tables in criminal cases has the virtue of getting all cases that come into the courts tried or dismissed. To the extent that trial delays are influenced by methods of prosecutors and Judges which they can improve, and the resulting heavy pressure of an absolute time limit causes improvement, some delays will be cut down.

The exact situation is not reflected in available statistics. If there are many dismissals of serious criminal charges because courts and prosecutors have too many cases to process in spite of full diligence, hopefully public opinion will spur State and local legislative bodies and administrators to provide money for additional services and facilities.

But the court can not look complacently at so Spartan a process leading to so dire a result. The judicial establishment must itself reexamine its own methods of doing things to see if time can be saved in the process, and so accommodation given to more cases in a day's work.

That Judges are devoting more--not less--effort to the processing of each criminal case than they did 10 years ago is apparent from the official statistics, which will be discussed in a moment, which show in the New York City counties in courts handling felonies a 90% Increase in Judge days in processing a 70% Increase in indictments. This comparison raises the additional question of how much a further increase in the number of Judges continuing to follow present procedures can alone eliminate trial delays.

Therefore, if we can expedite the movement of cases and minimize delay by improvement of judicial procedures and techniques, we should set about to do it. Some changes may be beyond our power, but what we can do we should do.

Delays in criminal cases are in some part due to time-consuming protective procedures, not directly determinative of guilt or innocence, requiring independent hearings and findings by Trial Judges under current judicial decisions and statutes stemming from these decisions. These decisions have developed in a purpose to provide maximum fairness and constitutional safeguards for the accused; but a point seems to have been reached where their proliferation is a factor in building up calendar congestion.

Some of these hearings now being conducted are reduplicative. The Judge must independently decide the same ultimate fact which the jury also will later independently decide in determining guilt or innocence.

The present case is itself a prime example of the reduplicated examination of essentially the same subject, first before the Judge alone, and then before the Judge and jury.

The full trial record occupies 690 pages of transcript. The preliminary hearing before the Judge addressed to reliability of witnesses on identity made a record of 320 pages, almost half the length of the record of the full trial. Defendant concedes that the testimony of those witnesses identifying him as one of the holdup men was very similar at the trial and at the hearing--the witness Nancy Vitale 'substantially' the same; the witness Vito Scudera 'largely the same'. This means that the same testimony was heard before a Judge and then before a Judge and a jury at a time when calendar congestion is growing to dangerous proportions.

To the extent that the 320-page hearing before the Judge alone on identification consumed available court time, it proportionately delayed all cases on the calendar behind the present one. If this happened in a substantial part of the 900 cases in which indictments are returned...