People v. Imbesi
| Decision Date | 15 October 1974 |
| Citation | 46 A.D.2d 625,359 N.Y.S.2d 889 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Anthony IMBESI, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
A. J. Girese, New York City, for respondent.
A. T. Cambouris, New York City, for defendant-appellant.
Before McGIVERN, P.J., and NUNEZ, MURPHY, TILZER and CAPOZZOLI, JJ.
Judgment, Supreme Court, New York County, rendered on June 28, 1972, is affirmed. Our dissenting colleagues agree with us that but for the claim of deprivation of a speedy trial, the points raised on this appeal are without merit.
Defendant stands convicted, after a fair trial to a jury, of the attempted rape of a young airline stewardess. He was sentenced to a maximum of three years imprisonment and has already been released on parole. Defendant was arrested August 24, 1968 and released on bail a few days thereafter. He remained at liberty until his trial, which commenced January 3, 1972. On October 14, 1971 appellant moved for dismissal of the indictment on the grounds of failure to prosecute. It was conceded by defendant that some of the adjournments and delays were requested by him. However, the court, in denying the motion, noted that since March 30, 1970 the case had been adjourned eleven times, mostly at the request of the People. The District Attorney argued that he was busy trying jailed defendants, but the court ordered defendant's trial during the January 1972 Term upon penalty of dismissal. The trial and conviction followed within the time limit set.
The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1971) set forth the four factors to be weighed by a court in deciding a motion to dismiss for failure to afford the defendant a speedy trial: 'length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.' 407 U.S. 530, 92 S.Ct. 2192. True, part of the delay was by the People, plainly due to lack of manpower and facilities and the necessity of granting trial preference to prison cases. In Barker v. Wingo, Supra, (p. 529, 92 S.Ct. p. 2191) the Supreme Court has suggested that a court should 'weigh the frequency and force of the objections as opposed to attaching significant weight to a purely Pro forma objection.' We note that defendant objected to the delay only once, more than three years after his indictment and, lastly, we note that defendant suffered no prejudice during the long period he was free on bail awaiting trial. Under the principles enunciated in Barker v. Wingo, Supra, and as viewed in terms of related case law, appellant has failed to establish that he was unjustifiably denied his right to a speedy rial. Convictions involving delays of similar or longer duration chargeable to the People have been affirmed as not constituting a violation of due process. Barker v. Wingo, Supra; People v. Barber, 33 A.D.2d 892, 306 N.Y.S.2d 878, affd. 30 N.Y.2d 626, 331 N.Y.S.2d 440, 282 N.E.2d 329 (1972); People v. Scicchitano, 41 A.D.2d 903, 342 N.Y.S.2d 645.
All concur, except McGIVERN, P.J., and MURPHY, J., who dissent in the following memorandum by MURPHY, J.:
We would reverse this conviction and dismiss the indictment for the unreasonable and unsatisfactorily explained delay in prosecution.
Defendant was arrested on August 24, 1968, on the complaint of a girl he had 'dated' the preceding evening. He was released on $5,000 bail a few days later and indicted on September 10, 1968 for attempted rape and lesser crimes. On January 3, 1972, some 40 months later, he was brought to trial and convicted of attempted rape in the first degree.
In October, 1971, defendant moved to dismiss his indictment contending that the then 37-month delay had deprived him of his constitutional right to a speedy trial. After noting that the initial portion of the delay, in 1969, was attributable to defendant's hospitalization for an operation and post-operative convalescence and that some delay was due to pre-trial procedures, the court concluded that almost all of the adjournments after March 30, 1970 were chargeable to the People. Accordingly, the indictment was conditionally dismissed, unless the matter was tried by the conclusion of the January 3, 1972 Term. Under the circumstances here presented, the motion should have been granted unconditionally.
The sole excuse proffered below for the delay was the assigned prosecutor's preoccupation with trials of incarcerated defendants; and the principal argument advanced here for rejection of defendant's contention is lack of prejudice. We find neither the excuse for the trial delay nor the justification for the denial of defendant's speedy trial claim legally acceptable.
The factors enumerated in Barker v. Wingo (407 U.S. 514, 92 S.Ct. 2182,...
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...delays of similar or longer duration have been affirmed as not constituting a violation of due process'. (See also People v. Imbesi, 46 A.D.2d 625, 359 N.Y.S.2d 889) The court did not act, however, without first making its independent findings respecting the conduct of both the prosecutor a......
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