People v. Gelfand

• Decision Date: 31 January 1986
• Citation: 499 N.Y.S.2d 573,131 Misc.2d 268
• Parties: PEOPLE of the State of New York v. Melvin GELFAND and Jeff Alexander, Defendants.
• Court: New York Supreme Court

Page 573

499 N.Y.S.2d 573

131 Misc.2d 268

PEOPLE of the State of New York v. Melvin GELFAND and Jeff Alexander, Defendants.

Supreme Court, Kings County Criminal Term, Part 37.

Jan. 31, 1986.

Beatrice Salten-Smith, New York City, for defendant Melvin gelfand.

John Janiec, New York City, for defendant Jeff Alexander.

Asst. Dist. Atty. Jonathan Polonsky, for People.

MEMORANDUM

RUTH E. MOSKOWITZ, Justice.

In this case, the Court is asked to decide whether a second indictment filed more than six months after an indictment based on the same alleged criminal conduct was dismissed as defective due to an insufficient quorum in the Grand Jury must be dismissed because the People were not ready for trial within the applicable statutory period.

On June 20, 1984, Indictment Number 4161/83 was filed, charging the defendants herein with Conspiracy in the Fifth Degree (P.L. section 105.05), with Attempted Grand Larceny in the Second Degree (P.L. section 110/155.35) and with five counts of Insurance Fraud in the First Degree (P.L. section 176.20). Motions were subsequently served by the defendants, including a motion to dismiss, and a request that the Court inquire into the constitution and vote of the Grand Jury to ascertain if the requirements of Criminal Procedure Law section 210.35 had been met. The People opposed the motion to dismiss based on this ground. ¹

On January 25, 1985, this Court, after having reviewed the submitted papers, directed the People to turn over to the Court and to the defendants copies of the Grand Jury minutes. In addition, this Court directed the Assistant District Attorney to provide the Court with the Grand Jury attendance records so that a determination could be made as to whether or not there was a legally sufficient quorum of grand jurors who heard substantially all of the evidence which was presented against the defendants. The People allege it was only on January 28, 1985, as they began to review the minutes and the Grand Jury attendance records, that they learned that a mere seven jurors had heard all of the evidence presented.

Although the case had originally been adjourned until March 19, 1985 for the Court's decision on the motions, the matter was advanced at the People's request, to February 26, 1985, since the People had apparently decided to "acquiesce in the defendants' motion to dismiss and to request leave to represent." On that date, the Court granted defendants' motion to dismiss on the ground that an insufficient number of grand jurors had heard the evidence presented, and granted the People's application for leave to represent. In doing so, this Court expressed its concern over the delay in prosecution. The case was then adjourned to April 1, 1985, pending representation. On April 1, 1985, the People were not yet ready to proceed with the new indictment and the matter was again adjourned. On April 19, 1985, the Grand Jury voted a true bill and returned Indictment Number 13 00/85, charging defendants with Conspiracy in the Fifth Degree (P.L. section 105.05), with Attempted Grand Larceny in the Second Degree (P.L. section 110/155.35), with 16 counts of Insurance Fraud in the First Degree (P.L. section 176.20), and with 16 counts of Falsifying Business Records in the First Degree (P.L. section 175.10). The indictment was filed on that date, and defendants were directed to appear for arraignment on April 22, 1985, at which time the People announced their readiness on the record. This was the first time that the People announced their readiness on either indictment. The defendants were arraigned on the new indictment on May 3, 1985. On that date the People announced for the second time on the record that they were ready for trial. Motions were served and filed on July 15, 1985. Defendant Alexander's motion papers, in which defendant Gelfand joined, requested inter alia, dismissal of the indictment pursuant to Criminal Procedure Law section 210.20(1)(g) on the ground that the People had not been ready to proceed within the time set forth by Criminal Procedure Law section 30.30(1)(a).

The starting point for an analysis of a defendant's speedy trial claim under Criminal Procedure Law section 30.30 is the date on which the criminal action was commenced. Where a felony is charged, unless the Prosecution is ready for trial within six months of the commencement of the criminal action, the indictment must be dismissed. Criminal Procedure Law section 1.20(17) provides that a criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court. If, during the course of the action, more than one accusatory instrument is filed, the action is deemed to have commenced on the date when the first of such accusatory instrument was filed. Even if the original accusatory instrument has been replaced or superseded, the time computation commences on the date when the first accusatory instrument was filed. Indeed, the Court of Appeals, in People v Lomax, 50 N.Y.2d 351, 428 N.Y.S.2d 937, 406 N.E.2d 793 (1980), has held that continuity of a criminal action remains intact through the issuance of successive indictments where an indictment has been dismissed and the defendant is subsequently brought back into Court on an entirely new indictment. Thus the present indictment may be considered to have related back in time to the filing of the initial indictment.

It is conceded by both defendants and the Prosecution, that the criminal action commenced with the filing of the original indictment, on June 20, 1984. It is also conceded that the People announced their readiness for the first time on April 22, 1985, three days after the filing of the second indictment. On that date, the clock stopped running for purposes of Criminal Procedure Law section 30.30. Since the People announced their readiness more than six months after the commencement of the criminal action, they have the burden of proving that certain periods of time should be excluded from the court's speedy trial computations so as to bring this case within the six-month statutory limitation period. This court must therefore determine what portion of excludable time accruing under the initial indictment should be charged to the continued prosecution under the second indictment.

The People state that of the total 306 days which elapsed before their statement of readiness was made, only 52 days are chargeable to them. The People contend that most of the remaining 254 days are excludable under Criminal Procedure Law section 30.30(4)(a) ("a reasonable period of delay resulting from ... pretrial motions ... and the period during which such matters are under consideration by the court") or under Criminal Procedure Law section 30.30(4)(b) ("the period of delay resulting from a continuance granted by the Court at the request of, or with the consent of, the defendant of his counsel"). ² The defendants maintain that any delays due to defense adjournments and pretrial motions addressed to the original indictment should not be excluded from the computation of speedy trial time, since these delays were not the cause of the People's failure to be ready for trial, and since nothing done by the defendants prevented the People from obtaining a jurisdictionally valid indictment.

Were the dismissal of the original indictment a result of a judicial determination that there was an evidentiary insufficiency in the Grand Jury proceeding (see, e.g., People v. Lomax, 50 N.Y.2d 351, 428 N.Y.S.2d 937, 406 N.E.2d 793 (1980) ) or an erroneous charge (see, e.g., People v. Stephens, 113 Misc.2d 1006, 450 N.Y.S.2d 686 (Supreme Court Kings Co. 1982, Egitto, J.), or to serve the convenience of a Prosecutor wishing to replace it with a superseding indictment (see, e.g., People v. Cruz, 111 A.D.2d 725, 491 N.Y.S.2d 330 (First Dept. 1985), mdf'g 123 Misc.2d 316, 473 N.Y.S.2d 307 (Supreme Court N.Y. Co. 1984, Ryp, J.), this Court might be inclined to accept the People's argument and to exclude from the computation of time within which the People must be ready those periods of delay resulting from defense adjournments and from pretrial motions addressed to the original indictment.

However, in this case, the original indictment was found to have been fatally defective ab initio. The People could never have been deemed ready for trial, since they did not have a jurisdictionally sufficient accusatory instrument on which to proceed. See People v. Colon, 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548 (1983), rev'g 112 Misc.2d 790, 450 N.Y.S.2d 136 (App.T.First Dept.1982), rev'g 110 Misc.2d 917, 443 N.Y.S.2d 305 (Crim.Ct.N.Y.Co.1981, Atlas, J.). Not having filed an accusatory instrument which conferred upon the Court the requisite jurisdiction to try the defendants, the People could never have been able to proceed to trial under the original indictment. ³

In People v. Colon, supra, defendant's speedy trial rights were found to have been violated where the people failed to convert three misdemeanor complaints into informations within the applicable statutory period. The trial court held that the People could not be ready for trial within the statutory period if they had not converted the complaints to jurisdictionally sufficient informations within that time period. The Court of Appeals ruled that since the delay in conversion was not a result of defendant's absence, the excludable periods permitted by Criminal Procedure Law section 30.30(4)(c) would not apply. Similarly, in People v. Sturgis, 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331 (1976), the Court of Appeals held that the absence or unavailability of a defendant against whom a felony complaint had been filed, did not prevent the People from procuring and filing a subsequent indictment, and that, consequently, the delay in indicting did not qualify for an exclusion under Criminal Procedure Law section 30.30(4)(c). ⁴ Since an accusatory instrument sufficient to confer...