People v. Gandhi

• Decision Date: 20 November 1975
• Parties: The PEOPLE of the State of New York v. Joseph GANDHI, Defendant.
• Court: New York Supreme Court

Page 556

375 N.Y.S.2d 556

84 Misc.2d 231

The PEOPLE of the State of New York v. Joseph GANDHI, Defendant.

Supreme Court, Trial Term, New York County, Part 45.

Nov. 20, 1975.

Gerald Zuckerman, New York City, for defendant.

Robert M. Morgenthau, Dist. Atty. (Lawrence Gentile, III, New York City, of counsel), for plaintiff.

IRVING LANG, Justice:

This motion to dismiss a three-and-a-half-year old indictment highlights the all too frequent mishandling of cases where a defendant has more than one indictment pending against him. Once again a court is confronted with conflicting affidavits by reputable defense and prosecuting attorney concerning purported agreements, informally arrived at, with no support for respective positions in the court record.

In 1972 the defendant Joseph Gandhi and a co-defendant, Edward Rackley, had two indictments pending against them. In Indictment Number 412/72 they were charged with murder and robbery. In Indictment Number 773/72 they were charged with robbery and order crimes.

Gandhi and Rackley went to trial on the murder indictment in October of 1973 and were convicted of manslaughter and robbery. On December 3, 1973, each defendant was sentenced to 8 1/3--25 years on the manslaughter conviction and 0--15 years on the robbery convictions, those sentences to run concurrently. On June 26, 1975, the convictions were affirmed by the Appellate Division, New York State Supreme Court, First Judicial Department (48 A.D.2d 1014, 372 N.Y.S.2d 207).

Meanwhile, Indictment Number 773/72 hibernated in a judicial limbo, occasionally appearing on a court calendar only to be adjourned to its normal dormant state.

Now, almost four years after the date of the alleged crime, the defendant moves for a dismissal of Indictment Number 773/72 on the grounds that he has been denied his constitutional and statutory rights to a speedy trial 'under the Sixth and Fourteenth Amendments to the United States Constitution and Section 30.20 of the Criminal Procedure Law and Section 12 Civil Rights Law.'

The District Attorney advances two contentions in opposition: first, that under CPL § 30.30(4)(a) the period from December 3, 1973, until June 26, 1975, during which the homicide conviction was being appealed, must be excluded from any time lag between indictment and trial; and, secondly, that the defendant consented to all adjournments until June of 1975 and thereby waived his right to a speedy trial.

The District Attorney's first argument is based on his interpretation of Section 30.30(4)(a) of the Criminal Procedure Law which provides as follows:

'4. In computing the time within which the people must be ready for trial pursuant to subdivisions one and two, the following periods must be excluded:

(a) a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to proceedings for the determination of competency and the period during which defendant is incompetent to stand trial; pre-trial motions; Appeals; trial of other charges; and the period during which such matters are under consideration by the court; . . ..' (emphasis supplied).

The District Attorney asserts that the word Appeals in this tolling statute means that during the time the defendant appealed his homicide conviction, the People were not required to proceed on the robbery case.

While there are no reported cases on this issue, any rational interpretation of the word 'appeals' in CPL Section 30.30(4)(a), especially in the light of statutory (CPL § 450.10(1); § 460.20) and constitutional rights to appeal to our higher courts, indicates that the word 'appeals' refers to appeals from pre-conviction proceedings and motions and not appeals from a judgment of conviction in an unrelated case. To take an extreme example, assume that a defendant was convicted of disorderly conduct and at the same time had a homicide indictment pending. Under the District Attorney's reasoning, if the defendant appealed the disorderly conduct conviction to the Appellate Term of the Supreme Court (as of right) and to our Court of Appeals (discretion) and perhaps to the Supreme Court of the United States, a process which might take years, he would thereby forego his right to a speedy trial on the homicide indictment. Indeed under the District Attorney's reasoning, it would not even matter if the defendant was in custody during this period. It is apparent that CPL Section 30.30(4)(a) excludes from speedy trial computations those situations where it is legally or practically difficult, if not impossible, to commence a trial. Thus a defendant cannot be tried if he is being examined to determine his competency to stand trial, or if he is found to be incompetent to stand trial. He cannot be tried if a judge has to determine whether to suppress vital evidence. He cannot be tried while on trial in another case. And although pre-trial decisions and orders in criminal cases are generally interlocutory and non-appealable, there are pre-trial appeals (such as from a denial of habeas corpus on a bail issue) which would inevitably delay the commencement of a trial and should not be chargeable to the People. To put it simply, the District Attorney's interpretation of the statute in question would render it unconstitutional. When a court is faced with varying interpretations of a statute, one of which creates an absurd unconstitutional result, the other being reasonable and legal, the option is obvious (McKinney's, Statutes § 150(c)).

The District Attorney's claim under CPL Section 30.30(4)(a) is therefore rejected.

The second argument urged by the District Attorney is that the defendant consented to the adjournment and thereby waived his right to a speedy trial (see CPL Section 30.30(4)(b)). In order to understand this contention we must examine the respective affidavits of counsel herein. Defendant's counsel asserts that he was assigned to both indictments at the same time early in 1972, that he never prepared the instant indictment for trial since the prosecution indicated that it would try the murder case first, and that after the murder conviction the District Attorney stated that if the homicide conviction were affirmed he would dismiss the robbery case. It was only on the basis of the purported promise to dismiss the robbery in the event of appellate affirmance of the homicide that defense counsel consented to various adjournments of the instant case for 18 months. Thus, although denoted a 'speedy trial' motion, the defendant's attorney is in reality seeking specific performance of a purported pretrial agreement. Since the decision to prosecute rests within the discretion of the District Attorney (McDonald v. Sobel, 272 App.Div. 455, 72 N.Y.S.2d 4, aff'd 297 N.Y. 679, 77 N.E.2d 3; People ex rel. Lindgren v. McGuire, 151 App.Div. 413, 136 N.Y.S. 88), this agreement is capable of enforcement by a court (Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, People v. Santobello, 39 A.D.2d 654, 331 N.Y.S.2d 776, cf. People v. Selikoff, 35 N.Y.2d 227, 360 N.Y.S.2d 623, 318 N.E.2d 784).

However, there can be no enforcement under Santobello since the District Attorney denies that any such agreement was made. He contends that what occurred was a 'good faith misunderstanding on the part of defense counsel . . . (but) . . . absolutely...