People v. Kent
| Decision Date | 26 May 1976 |
| Parties | The PEOPLE of the State of New York, v. Richard KENT, Defendant. |
| Court | New York County Court |
This is a motion by defendant for an order pursuant to Criminal Procedure Law § 210.20, subd. 1(g) dismissing the indictment upon the grounds defendant has been denied a speedy trial within the meaning of CPL § 30.30, subd. 1(a).
The People concede that defendant was arraigned upon a felony complaint dated August 17, 1975, but offer no response to defendant's assertion that defendant was arrested on the within charge on the same day he was arraigned. In this regard the court would note that the Supreme Court of the United States has already addressed itself to the question of when a criminal action commences in U.S. v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468. There the court stated:
'. . . it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrests and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.' (See also Dillingham v. U.S., 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205.)
The indictment against the defendant on the subject charges was not handed up until March 12, 1976, some seven months following defendant's conceded arraignment.
The People oppose the application upon three grounds. They contend initially that period of delay occasioned by the unavailability of People's witnesses (CPL § 30.30, subd. 4(g)) and adjournments of the Grand Jury presentation a the request of co-defendants (CPL § 30.30, subd. 4(d)) must be deducted from the total elapsed period between the commencement of the action and the filing of the within motion. (It is to be noted that the People have not asserted they were ready at any time during this interval.)
As to the first of these purported exclusionary periods, that period wherein the People's witnesses were not available, subdivision 4(g) is applicable and provides as follows:
'4. In computing the time within which the people must be ready for trial pursuant to subdivisions one and two, the following periods must be excluded:
(g) other periods of delay occasioned by exceptional circumstances, including but not limited to, the period of delay resulting from a continuance granted at the request of a district attorney if (i) the continuance is granted because of the unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period; or (ii) the continuance is granted to allow the district attorney additional time to prepare the people's case and additional time is justified by the exceptional circumstances of the case.'
The People urge that the delay occasioned by the unavailability of People's witnesses is excludable (CPL § 30.30, subd. 4(g)). It is not alleged nor shown, however, that the delay resulted from the granting of a continuance at the People's request.
In People v. Sturgis, 77 Misc.2d 766, 354 N.Y.S.2d 968, affirmed 46 A.D.2d 741, 362 N.Y.S.2d 438, reversed on other grounds 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331, a case involving a delay between arraignment on a felony complaint and indictment, the court rejected the People's contention that the delay complained of was excused by exceptional circumstances where the People, as here, never made application for a continuance. The court stated the following in a footnote appearing on page 768, 354 N.Y.S.2d on page 971:
Subdivision 4(d) applies to those circumstances where delay is occasioned by the activities of co-defendants and excludes--
'(d) a reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial pursuant to this section has not run and good cause is not shown for granting a severance.'
'Section 30.30 is a mandatory provision pursuant to which a motion to dismiss Must be granted where the People are not ready for trial within the specified period of time unless the delay is excludable under one of the subdivisions of the act.' (People v. Saunders, 84 Misc.2d 467, 470, 376 N.Y.S.2d 879, 882).
By definition, the various exclusionary paragraphs of subdivision 4 are exceptions to the ready rule set forth in CPL 30.30. 'An exception is generally a part of the enactment itself, absolutely excluding from its operation some subject or thing that otherwise would fall within its scope.' (McKinney's Statutes, Book 1, § 213). Exceptions are strictly construed in order that the major policy underlying the legislation itself is not defeated (...
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