People v. Guerra

• Decision Date: 14 November 1974
• Citation: 365 N.Y.S.2d 342,81 Misc.2d 82
• Parties: PEOPLE of the State of New York v. Louis GUERRA, Defendant.
• Court: New York City Court

Page 342

365 N.Y.S.2d 342

81 Misc.2d 82

PEOPLE of the State of New York v. Louis GUERRA, Defendant.

Criminal Court of the City of New York, Bronx County.

Nov. 14, 1974.

Mario Merola, Dist. Atty., Bronx County, Carl A. Vergari, Dist. Atty., Westchester County by Tony Berk, Asst. Dist. Atty., for the People.

Gerald B. Lefcourt, New York City, for defendant.

DECISION

HOWARD E. GOLDFLUSS, Judge.

The issues raised herein result from the complex byproducts of electrical surveillance. The Court has before it a motion by the District Attorney of Westchester County to quash a subpoena duces tecum directed to his office to produce certain orders, affidavits, logs, reports, transcripts or summaries of recorded conversations. Simultaneously, this Court must consider the three-pronged motion of the defendant for

(a) an order dismissing the complaint on the ground that the defendant has been denied a speedy trial, as provided under § 30.30 of the Criminal Procedure Law;

(b) full disclosure of the materials sought to be quashed by the District Attorney of Westchester County; and

(c) failing full disclosure, dismissing the information.

I. FACTS

The defendant, Louis Guerra, was arrested on October 24, 1973, pursuant to a grand jury warrant resulting from a 'John Doe' indictment. The arrest was also made pursuant to a search warrant which allegedly produced a weapon in the defendant's home. It was later ascertained that he was not the 'John Doe' named in the indictment, and as a result thereof, he was arraigned in Bronx Criminal Court on October 25, 1973, charged with possession of a defaced weapon as a felony (§ 265.05 subd. 2 of the Penal Law and § 265.05 subd. 8 of the Penal Law) and the misdemeanor of possession of marijuana (§ 220.03 of the Penal Law) but not with the sale of narcotics, which was the subject of the original 'John Doe' indictment.

A preliminary hearing was held before a judge of this Court on November 28, 1973, and the defendant was held for the action of the grand jury. The matter was adjourned to Part XII of the Supreme Court, Bronx County. After subsequent adjournments, it was ascertained that the grand jury did not indict but returned the matter to the Criminal Court as a misdemeanor information. The gun and the marijuana, subjects of the information, were uncovered as a result of the search made pursuant to the search warrant.

On February 25, 1974, the Assistant District Attorney in Bronx County assigned to the matter informed the Court that the defendant was entitled to certain wire tap orders. On March 26, 1974, the defendant received wire tap orders emanating from Bronx County, which were used to garner information which ultimately became the basis for the Westchester County wire tap orders. Counsel for the defendant alleges that subsequent to promises allegedly made to counsel to the defendant to supply both Bronx and Westchester wire tap materials, he received the Bronx materials but not the Westchester materials. The defendant maintains that the information derived from the Westchester wire tap is the sole probable cause for the issuance of the search warrant which permitted the search of his home. The District Attorney of Bronx County cooperated fully with the defendant in this regard and counsel concedes this, but the Westchester County District Attorney's office refused to grant to the defendant that same degree of discovery.

After several adjournments of the matter, this Court issued a subpoena duces tecum on September 9, 1974, directing that all wire tap material be made available to the defendant, including all orders, affidavits, logs, tapes, reports, transcripts or summaries of reported conversations which could possibly involve the defendant. On October 17, 1974, the return date of the subpoena duces tecum, the motion to quash was made and the defendant countermoved for the relief related heretofore.

II. THE RIGHT TO A SPEEDY TRIAL

The defendant claims that the delay in providing him with all the materials the requires, something which he insists he is entitled to, has prejudiced him in that he now has to reconstruct the events of October, 1973, more than one year after they occurred. He further contends that even if the Court directs the Westchester County materials to be turned over to him, that the long delay has irreparably harmed him because of possible memory lapses of witnesses and difficulty in locating these witnesses.

After the Supreme Court of the United States in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) applied the speedy trial protections to the States, attempts were made in other jurisdictions to define this right by reference to certain time periods. In New York, the Administrative Board of the Judicial Conference promulgated a time period definition of the right to a speedy trial, but before this could be effective, the New York State Legislature enacted § 30.30 of the Criminal Procedure Law which was expressly designed to supersede these recently enacted rules of the Administrative Board. § 30.30 of the Criminal Procedure Law mandates dismissal 'where the people are not ready for trial within . . . (b) ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony.'

Subdivision 5(c) covers the situation herein wherein the grand jury returned the matter to the Criminal Court as a misdemeanor. 'The period applicable . . . must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument.'

The language of § 30.30 of the Criminal Procedure Law varies significantly from the Administrative Board Rules. The latter would have a defendant released or completely discharged 'if the cause has not been brought to trial' within the prescribed period so long as the defendant was not responsible for the delay. The fact that the prosecutor was free of fault was not a factor.

Section 30.30 of the Criminal Procedure Law, however, uses the language 'when the People are not ready for trial within' the prescribed time limits. It would appear, therefore, that diligence, blamelessness or readiness on the part of the District Attorney constitute factors which may be considered in determining the merits of such applications.

The defendant was arrested on or about October 23, 1973. Since he was first advised of the existence of the wire taps (on or about February 25, 1974) he sought to obtain the Westchester County materials in order to prepare for the motion to suppress. The District Attorney of Bronx County, however, has supplied him with all materials in his possession and he contends that he, the Bronx District Attorney, has acted in good faith. Simply put, does the refusal of the Westchester County District Attorney to turn over to the defendant the materials in His possession enure to the detriment of the District Attorney in Bronx County for the purposes of this motion? Counsel concedes full coopertion to the defendant by the Bronx District Attorney in such instance where he was capable of cooperating. In People v. Timothy, 34 N.Y.2d 867, 359 N.Y.S.2d 114, 316 N.E.2d 580, the Court of Appeals affirmed a conviction where the delay from arrest to trial was 29 months, stating, 'Delay alone does not automatically breach the defendant's constitutional and statutory rights. Each such case must be determined on balance, i.e., the conduct of the prosecution and that of the defendant are weighed' (citing People v. Blakely, 34 N.Y.2d 311, 357 N.Y.S.2d 459, 313 N.E.2d 763). Here, a factor not within the control of the District Attorney of Bronx County or the defendant caused the delay, and both parties were acting in good faith. In addition, the delay of approximately 8 months from the original request does not reach the level of irreparable damage or harm. Finally, by the further disposition of defendant's motion, no further delay will be sanctioned or permitted. That portion of defendant's motion demanding dismissal pursuant to § 30.30 of the Criminal Procedure Law is, therefore, denied.

III. FULL DISCLOSURE OF ELECTRONIC SERVEILLANCE RECORDS

The motion to quash by the District Attorney of Westchester County is directed to the subpoena duces tecum issued by the Court in this case. § 610.30 of the Criminal Procedure Law grants this Court authority to issue such subpoena. 'A subpoena of any criminal court, . . . may be served anywhere in the county of issuance or anywhere in an Adjoining county' and § 610.10 subd. 3 defines subpoena as including a 'subpoena duces tecum.'

The materials heretofore described in the subpoena duces tecum issued by this Court relate to two telephones, one listed to Peter Mengrone in Mount Vernon, Westchester County and the other listed to the defendant in Bronx County. Conversations between the two were intercepted. The District Attorney of Westchester County, in his affidavit, strongly objects to the discovery of these items because he alleges it is material which touches upon prosecution pending in the United States District Court, Southern District, as well as this action in Bronx County. He details in his affidavit that this is part of a large investigation of approximately one year in duration by federal and state law enforcement personnel concerning large scale criminal conspiracies involving narcotics, extending in their impact from New York State to Florida. Moreover, he alleges the logs of the wire tap of Peter Mengrone includes investigative leads which, to this date, have not been fully explored. It is his concern that if the material is made available to this defendant the security of this mammoth investigation will be breached in that defendant will be in a position to warn other individuals with whom he is allegedly connected. He...