People v. Gearns

• Decision Date: 16 December 1958
• Citation: People v. Gearns, 14 Misc.2d 1010, 180 N.Y.S.2d 875 (N.Y. Mag. Ct. 1958)
• Parties: 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
• Court: New York Magistrate Court

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.

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.

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.

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 contrary be shown'. (Italics mine.)

The meaning of the words 'held, to answer' is to be found in Section 208 of the Code of Crim.Proc. That section provides in its pertinent parts that 'if * * * it appear from the examination that a crime has been committed and that there is sufficient cause to believe the defendant guilty thereof, the magistrate * * * [will order] that he be held to answer the same'. (Italics mine.) Thus, it is clear that 'held to answer' refers to situations where the Magistrate holds a defendant either for the Court of Special Sessions or for the actions of the Grand Jury. And since the defendant in the instant case merely has a charge pending against him and has not been 'held to answer' for a crime, it logically follows that he has not been deprived of his right to a speedy trial.

Support for that conclusion is to be found in the Prosser case, supra [309 N.Y. 353, 130 N.E. 893], itself. In that case the Court stated 'The speedy trial guarantee, preventing undue delay between the time of indictment and trial,...