People v. Heller

• Decision Date: 12 January 1984
• Citation: 122 Misc.2d 991,472 N.Y.S.2d 824
• Parties: PEOPLE of the State of New York v. Edward HELLER.
• Court: New York Supreme Court

Page 824

472 N.Y.S.2d 824

122 Misc.2d 991

PEOPLE of the State of New York v. Edward HELLER.

Supreme Court, Criminal Term Kings County, Part 26.

Jan. 12, 1984.

Elizabeth Holtzman, Dist. Atty., Kings County, Brooklyn (Edward Boyar, Asst. Dist. Atty., of counsel, Brooklyn), for the People.

John Mitchell, LaRossa, Axenfeld & Mitchell, New York City, for defendant.

MEMORANDUM

ALAIN M. BOURGEOIS, Justice.

On January 10, 1983, Indictment No. 5054/82 was filed, charging the defendant herein, together with a codefendant, Spencer Lader, with eight counts of grand larceny in the second degree and a single count of scheme to defraud in the second degree.

On January 17, 1983 the defendants were arraigned and the matter adjourned for all purposes to February 15, 1983.

On February 15, 1983, Indictment No. 5054/82 was called into the record simultaneously with three other indictments wherein Spencer Lader was the sole defendant (No. 2894-6/82). At this time, the People announced their readiness for trial.

This general statement of readiness was addressed by the court and counsel for defendant Heller. In the ensuing colloquy, the People stated their readiness with regard to the Lader indictments and their understanding that motions were pending as to the charges against Edward Heller.

Motion practice with regard to Indictment No. 5054/82 in fact consumed the next several months. On April 26, 1983, extensive defense motions were filed, accompanied by an exhaustive memorandum of law. Submission by both sides of further papers addressed to the defendant Heller's attack upon the indictment was not completed until June 16, 1983, on which date the People stated that, their witnesses having been contacted, they were ready for trial but for the resolution of defendant's motions.

Defendant's challenge to the validity of Indictment No. 5054/82 was grounded upon three claims:

(1) That the grand jury returning said indictment had been improperly extended and was therefore incapable of returning a valid accusatory instrument;

(2) that the district attorney knowingly and deliberately failed to present to the grand jury certain exculpatory evidence, thereby depriving the defendant of due process;

(3) that the evidence that was presented to the grand jury was not legally sufficient to establish the offenses charged or any lesser included offenses.

Oral argument on defense motions were held on June 24, 1983. During the course of that argument the People indicated that they had "determined that an expeditious resolution would be to re-present this matter to a brand new Grand Jury" and that they had, in fact, already commenced that re-presentation.

Despite that statement, the People in no way conceded the invalidity of Indictment No. 5054/82. To the contrary, they vehemently contended that certain admitted irregularities in the extension of the grand jury did not, under the controlling case law, undermine the validity of that indictment.

Oral argument was extensive, being focused by the court's questions upon the issue of the grand jury's extension. At the conclusion thereof the court reserved decision, calendaring the case for July 21, 1983.

On July 8, 1983, while the motions were still under consideration by the court, the defendant was arraigned on superseding Indictment No. 3586R/83. In terms of the offenses charged, this superseding indictment exactly duplicated Indictment No. 5054/82.

The only difference between the two accusatory instruments concerned the status of Spencer Lader, named as a codefendant in the first indictment. On March 15, 1983 Mr. Lader had entered a plea of guilty to the fifth count of that indictment. As a result, Edward Heller was the sole defendant named in the superseding indictment, Mr. Lader being named therein as having acted in concert with Heller in the commission of the crimes charged.

At the conclusion of the July 8 arraignment proceeding, Indictment No. 3586R/83 was adjourned to July 21, 1983 to the same court part wherein the motions addressed to No. 5054/82 were still pending.

At no time during the arraignment proceedings regarding No. 3586R/83 did the People announce their readiness to proceed on that indictment nor did either party (or the court) take formal steps to dismiss the earlier accusatory instrument.

On July 15, 1983 Justice Sullivan, in a written determination, disposed of the motions addressed to No. 5054/82 on which he had previously reserved decision (People v. Heller, 120 Misc.2d 85).

Justice Sullivan denied defendant's application to dismiss the indictment on the grounds that the grand jury that had returned said indictment was no longer a legally constituted body at the time it so acted. After careful analysis of the procedural history of that grand jury, he found that "even though there was a technical interruption in the de jure status of the instant grand jury, this indictment was the product of a de facto grand jury and is valid under our law."

On July 21, 1983, six days after this written decision, both indictments (No. 5054/82 and No. 3586R/83) appeared on Justice Sullivan's calendar.

As to the former, that date's entries on both the case jacket and calendar disposition sheet reflect the resolution of defense motions described above followed by the dismissal of the indictment as superseded by No. 3586R/83.

As to the latter, the People having announced their readiness, the case was adjourned for defense motions. Those motions were filed on August 24, 1983 and included the speedy trial and due process claims herein resolved.

Conclusions of Law

Speedy Trial

CPL 30.30(1)[a] mandates that unless the People are ready for trial within six months of the commencement of a criminal action wherein a felony is charged the indictment must be dismissed.

Where there is more than one accusatory instrument filed in the course of a criminal proceeding, the action commences, for purposes of speedy trial computation, with the filing of the first of such instruments (People v. Osgood, 52 N.Y.2d 37, 436 N.Y.S.2d 213, 417 N.E.2d 507; People v. Lomax, 50 N.Y.2d 351, 428 N.Y.S.2d 937, 406 N.E.2d 793).

In the instant case, the initial accusatory instrument herein (No. 5054/82) was filed on January 10, 1983. Barring the applicability of certain exclusions of time as set forth in CPL 30.30(4) [a], it was the People's statutory obligation to make a bona fide statement of readiness for trial before July 10, 1983.

Once the defendant has shown a delay of greater than six months, the burden of proving the existence of excludable time falls upon the People (People v. Berkowitz, 50 N.Y.2d 333, 428 N.Y.S.2d 927, 406 N.E.2d 783).

Defendant advances two major arguments in support of his motion to dismiss pursuant to CPL 30.30.

Initially, defendant contends that any statements of readiness for trial with regard to Indictment No. 5054/82 (arguably made on February 15, 1983 and June 16, 1983) were not bona fide and were insufficient to stop the running of the 30.30 clock. It is argued that the People's unilateral determination to supersede that indictment is proof that the People were not possessed of a valid accusatory instrument upon which they could have been ready for trial.

The defense further argues that CPL 30.30(4)[a] cannot serve to exclude any of the time devoted to motions addressed to Indictment No. 5054/82. By extension of the logic of People v. Sturgis, 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331 and People v. Colon, 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548 defendant contends that in order for motions to validly toll the running of 30.30 time they must operate as the cause of the People's unreadiness. Given the People's posited failure to secure a valid accusatory instrument, it is submitted that they never could have been ready on Indictment No. 5054/82. Accordingly, defendant maintains that, as his motions were not the cause of the People's unreadiness, 30.30 time ran uninterrupted up to the People's first bona fide statement of readiness on July 21, 1983.

In the court's view, analysis of defendant's argument requires a determination as to the validity of the original indictment of January 10, 1983.

Under the logic of People v. Sturgis (supra ) and its progeny, if the initial indictment was jurisdictionally defective it could not at any point support a bona fide statement of readiness by the People. In such event, time taken up by the resolution of motions addressed to that instrument would not properly be excludable from the calculation of 30.30 time as not being the cause of the People's unreadiness (see People v. Stephens, 113 Misc.2d 1006, 450 N.Y.S.2d 686; People v. Buckmon, 120 Misc.2d 355, 465 N.Y.S.2d 823).

On the other hand, in the absence of a jurisdictional defect in the accusatory instrument, time devoted to the resolution of motions addressed to that indictment would properly be excludable from the time within which the People would be required to announce their readiness (see People v. Douglas, Sup.Ct., Kings County, N.Y.L.J., 9/20/83, p. 9, col. 3).

On July 15, 1983 Justice Sullivan rendered a written decision sustaining the validity of Indictment No. 5054/82 (People v. Heller, 120 Misc.2d 85, 465 N.Y.S.2d 671). Based on an analysis of the relevant case law, it remains unsettled, whether or not, under the unusual circumstances presented herein, the court is bound by that decision as the "law of the case."

An analysis of the issue must focus upon that section of the Criminal Procedure Law addressed to superseding indictments, CPL 200.80.

It is unclear from a reading of that section whether the simple fact of arraignment upon a superseding indictment serves to dismiss the original accusatory indictment by operation of law. If such be the case, Indictment No. 5054/82 became null and void upon the defendant's arraignment on July 8, 1983 and Justice Sullivan's decision of July 15, 1983 addressed itself to a nonexistent instrument and a...