People v. Kaplowitz

• Decision Date: 14 March 1973
• Citation: 344 N.Y.S.2d 129,74 Misc.2d 66
• Parties: PEOPLE of the State of New York v. Robert KAPLOWITZ, Defendant.
• Court: New York County Court

Page 129

344 N.Y.S.2d 129

74 Misc.2d 66

PEOPLE of the State of New York v. Robert KAPLOWITZ, Defendant.

Nassau County Court, Special Term, Part I.

March 14, 1973.

William Cahn, Dist. Atty., Mineola, for plaintiff.

Beryl I. Dulsky, Mineola, for defendant.

DAVID T. GIBBONS, Judge.

This is a motion by the defendant to dismiss the indictment because he has been denied his right to a speedy trial.

The defendant was arrested on June 19, 1971 for an alleged violation of Penal Law § 170.72(2), Illegal Possession of a Vehicle Identification Number Plate, a Class E Felony. On June 20, 1971, he was arraigned in Nassau County District Court under an information charging that crime. The defendant was released on his own recognizance, with a preliminary hearing scheduled for July 2, 1971. The hearing was then adjourned to July 26, 1971, at which time the defendant waived a preliminary hearing. The defendant was finally indicted on November 29, 1972, approximately 17 months after his arrest, and 16 months after his waiver of a preliminary examination. The indictment charged the defendant not only with the Illegal Possession of a Vehicle Identification Number Plate, but also with Criminal Possession of Stolen Property in the First Degree (PL § 165.50, a Class D Felony), to wit: a car.

There are two major issues to be answered here: 1) As to each count in the indictment, when did the right to a speedy trial attach? 2) As to each count in the indictment, was the defendant deprived of his right to a speedy trial?

CPL § 30.20(1) provides: 'After a criminal action is commenced, the defendant is entitled to a speedy trial.'

CPL § 1.20(17) states:

'A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court, and, if more than one accusatory instrument is filed in the course of the action, it commences when the first of such instruments is filed.'

Therefore, as to the Illegal Possession of a Vehicle Identification Number Plate charge, under the CPL, the right to a speedy trial attached with the filing of the information in District Court on June 20, 1971.

In United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468, the United States Supreme Court stated,

'. . . it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy-trial provisions of the Sixth Amendment.'

Therefore, as to the Illegal Possession of a Vehicle Identification Number Plate, under the Marion standard, the right to a speedy trial attached on June 19, 1971 with the defendant's 'arrest and holding to answer a criminal charge.' Accordingly, the defendant's constitutional right to a speedy trial on the charge of Illegal Possession of a Vehicle Identification Number Plate attached on June 19, 1971.

As to the Criminal Possession of Stolen Property in the First Degree, the defendant contends that, even though it was first charged in the indictment of November 29, 1972, the speedy trial right should be deemed to have also attached on June 19, 1971 with the arrest for Illegal Possession of a Vehicle Identification Number Plate. In this connection the defendant contends:

'. . . it is totally beyond logic to believe that the crime (Illegal Possession of a Vehicle Identification Number Plate) could exist without there being at least reasonable grounds to believe that the crime of Possession of Stolen Property (the car) may also have been committed. (Why else would there be an illegal identification number?) There is only one prosecution here, not two. . . .'

'The fact that an additional charge was subsequently returned by the Grand Jury did not commence a New prosecution. That additional charge is part and parcel of the original prosecution. . . . The same car is involved; the same time, place and date are involved; only one defendant is involved; in short, there is but one Res gestae.' (Defendant's Memorandum of Law, pages 2--3).

CPL § 40.10(1) defines an 'offense' as being committed,

'. . . whenever any conduct is performed which violates a statutory provision defining an offense; and when the same conduct or criminal transaction violates two or more such statutory provisions each such violation constitutes a Separate and distinct offense.' (Emphasis supplied).

In the instant case there were obviously two separate and distinct offenses allegedly committed, each of which could have been charged in separate accusatory instruments. (CPL § 1.20(3); CPL § 200.10; § 200.20(2)), and each is susceptible of different proof.

The thrust of the defendant's argument is that both offenses charged in the indictment arose from the same criminal transaction, and that the right to a speedy trial attached as to all offenses arising from that criminal transaction when the right attached as to one. This contention is contrary to and incompatible with the reasoning in United States v. Marion, (supra). When the Supreme Court specifically said, at page 321, 92 S.Ct. at page 463, '. . . we decline to extend the reach of the (sixth) amendment to the period prior to arrest' (or the filing of a formal indictment or information, whichever occurs first). The Court points out that the law provides the Statute of Limitations as the mechanism to protect the individual against possible prejudice resulting from the passage of time between the crime and the arrest or charge in the following language:

'There is thus no need to press the Sixth Amendment into service to guard against the mere possibility that pre-accusation delays will prejudice the defense in a criminal case since (the) statutes of limitation already perform that function.' (United States v. Marion, supra, page 323, 92 S.Ct., page 465).

In Footnote 13 on pages 321--322, 92 S.Ct. on page 464, of Marion, supra, the Court said,

'Allowing inquiry into when the police Could have arrested or when the prosecutor Could have charged would raise difficult problems of proof. As one court said, 'the Court would be engaged in lengthy hearings in every case to determine whether or not the prosecuting authorities had proceeded diligently or otherwise.' (United States v. Port, Crim.No. 33162 (N.D.Cal., June 2, 1952)).' (Emphasis supplied).

This is precisely the sort of speculating the defendant is asking this Court to engage in when he urges,

'. . . it is totally beyond logic to believe that that crime (Illegal Possession of a Vehicle Identification Number Plate) could exist without there being At least reasonable grounds to believe that the crime of Possession of Stolen Property (the car) May also have been committed. . . .' (Defendant's Memorandum of Law, supra).

As the Supreme Court said in Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374,

'There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long.'

The same reasoning applies to the prosecuting authorities in presentment of a case to the Grand Jury, via direct presentment where there has been no precedent arrest or formal charge. Pre-accusation delay goes to a denial of due process, not to a denial of the speedy trial right. (United States v. Marion, supra, 404 U.S. 307, 324, 92 S.Ct. 455).

Based on the foregoing, both under the CPL speedy trial provision, and the standard established in United States v. Marion, supra, the defendant's right to a speedy trial as to the Possession of Stolen Property count of the indictment, attached with the filing of the indictment on November 29, 1972. Before that time, this defendant was never an 'accused' as to that offense; he was never subject to a 'formal indictment or information or the actual restraints imposed by arrest and holding to answer' for that particular criminal charge. The prosecution was commenced, as to that felony charge, 'within five years after the commission thereof' as is required by CPL § 30.10(2)(b). His right to a speedy trial therefore attached, as to the Possession of Stolen Property charge, with the filing of the indictment on November 29, 1972. (CPL § 30.20(1); CPL § 1.20(17)).

The second question that must be determined is: Was the defendant deprived of his right to a speedy trial on either one or both of the counts charged in the indictment?

The right to a speedy trial attached as to the first count of the indictment, Possession of Stolen Property in the First Degree, with the filing of the indictment on November 29, 1972. The instant motion was made on February 8, 1973. This 10-week period cannot be said, either as a matter of fact or law, to constitute a denial of the speedy trial right. (People v. Henderson, 20 N.Y.2d 303, 307, 282 N.Y.S.2d 734, 737, 229 N.E.2d 422). (See also CPL § 30.30(1)(a)).

The right to a speedy trial as to the second count of the indictment, Illegal Possession of a Vehicle Identification Number Plate, attached on the date of defendant's arrest on that charge, June 19, 1971. (Note: The criminal action was thus commenced before the date that CPL § 30.30 became applicable, May 1, 1972). The indictment was filed on November 29, 1972,...