People v. Gearns

CourtNew York Magistrate Court
Citation14 Misc.2d 1010,180 N.Y.S.2d 875
Decision Date16 December 1958
PartiesThe PEOPLE of the State of New York, Complainant, v. John GEARNS, Defendant. City Magistrate's Court of City of New York, Felony Court, Borough of Brooklyn

Page 875

180 N.Y.S.2d 875
14 Misc.2d 1010
The PEOPLE of the State of New York, Complainant,
v.
John GEARNS, Defendant.
City Magistrate's Court of City of New York, Felony Court,
Borough of Brooklyn.
Dec. 16, 1958.

Page 876

Edward S. Silver, Dist. Atty., of Kings County, Brooklyn, by David Diamond and Lewis Joseph, Asst. Dist. Attys., Brooklyn, of counsel.

Austin E. Titus, Jr., Brooklyn, for defendant.

Page 877

VINCENT J. FERRERI, City Magistrate.

Defendant moves to dismiss a felony charge pending against him in the Brooklyn Felony Court since December 9, 1956 on the ground that he has been deprived of his right to a 'speedy hearing and trial'.

During the pendency of this charge the defendant was serving a sentence of 2 1/2 to 5 years in Greenhaven State Prison on a prior charge for attempted burglary in the third degree.

[14 Misc.2d 1011] This application is one of novel impression since research fails to disclose any case directly in point.

In support of his contention the defendant cites the case of People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891. In that case the Court of Appeals dismissed an indictment which had been pending for five years while the defendant was incarcerated on another charge.

The district attorney contends that the Prosser case, supra, has no application to the instant application which merely involves a pending charge in the Felony Court.

Section 8 of the Code of Criminal Procedure guarantees a defendant the right to a speedy trial. To enforce that right the Legislature enacted Sections 667 and 668 of the Code of Crim.Proc. That right is statutory and not constitutional. The defendant's contention that he has been deprived of a 'constitutional right' is without merit for the reason that the Sixth Amendment to the United States Constitution, providing, 'in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury' applies to the United States Courts only (People v. Hall, 51 App.Div. 57, 64 N.Y.S. 433) and does not apply to New York statutes (People v. Jelke, 284 App.Div. 211, 130 N.Y.S.2d 662, affirmed 308 N.Y. 56, 123 N.E.2d 769).

Section 667 of the Code of Crim.Proc. provides as follows:

'When a person has been held to answer for a crime, if an indictment be not found against him, at the next term of the court at which he is held, to answer, the court may on application of the defendant order the prosecution to be dismissed, unless good cause to the...

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5 practice notes
  • State v. Mays, No. 55610
    • United States
    • United States State Supreme Court of Iowa
    • February 21, 1973
    ...means held to answer by the magistrate in the section corresponding to our § 761.18. The Page 867 court said this in People v. Gearns, 14 Misc.2d 1010, 1011, 180 N.Y.S.2d 875, Section 667 of the Code of Crim.Proc. provides as follows: 'When a person has been Held to answer for a crime, if a......
  • People v. Laskowski
    • United States
    • New York County Court
    • January 26, 1973
    ...the time of the dismissal of the first indictment and the return of the second is immaterial. (C.C.P. § 667; cf. People v. Gearns, 14 Misc.2d 1010, 180 N.Y.S.2d See also, People v. Steiger, 154 Misc. 538, 277 N.Y.S. 602. Page 795 This construction is compatible with the statutory scheme ref......
  • State v. Morningstar, No. 54718
    • United States
    • United States State Supreme Court of Iowa
    • May 23, 1973
    ...862 (Iowa). We adhere to that decision. In New York, from which we borrowed the statute, the same result was reached. People v. Gearns, 14 Misc.2d 1010, 180 N.Y.S.2d 875. This defendant was not held to answer, and we hold that § 795.1 is not Since § 795.1 is inapplicable, we need not consid......
  • People v. Dorian
    • United States
    • New York Supreme Court — Appellate Division
    • March 11, 1963
    ...of the dismissal of the first indictment and the return of the second is immaterial (Code of Crim. Proc., § 667; cf. People v. Gearns, 14 Misc.2d 1010, 180 N.Y.S.2d...
  • Request a trial to view additional results
5 cases
  • State v. Mays, No. 55610
    • United States
    • United States State Supreme Court of Iowa
    • February 21, 1973
    ...means held to answer by the magistrate in the section corresponding to our § 761.18. The Page 867 court said this in People v. Gearns, 14 Misc.2d 1010, 1011, 180 N.Y.S.2d 875, Section 667 of the Code of Crim.Proc. provides as follows: 'When a person has been Held to answer for a crime, if a......
  • People v. Laskowski
    • United States
    • New York County Court
    • January 26, 1973
    ...the time of the dismissal of the first indictment and the return of the second is immaterial. (C.C.P. § 667; cf. People v. Gearns, 14 Misc.2d 1010, 180 N.Y.S.2d See also, People v. Steiger, 154 Misc. 538, 277 N.Y.S. 602. Page 795 This construction is compatible with the statutory scheme ref......
  • State v. Morningstar, No. 54718
    • United States
    • United States State Supreme Court of Iowa
    • May 23, 1973
    ...862 (Iowa). We adhere to that decision. In New York, from which we borrowed the statute, the same result was reached. People v. Gearns, 14 Misc.2d 1010, 180 N.Y.S.2d 875. This defendant was not held to answer, and we hold that § 795.1 is not Since § 795.1 is inapplicable, we need not consid......
  • People v. Dorian
    • United States
    • New York Supreme Court — Appellate Division
    • March 11, 1963
    ...of the dismissal of the first indictment and the return of the second is immaterial (Code of Crim. Proc., § 667; cf. People v. Gearns, 14 Misc.2d 1010, 180 N.Y.S.2d...
  • Request a trial to view additional results

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