People v. Kindlon

• Decision Date: 20 July 1995
• Parties: The PEOPLE of the State of New York, Respondent, v. Frank W. KINDLON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 827

629 N.Y.S.2d 827

217 A.D.2d 793

The PEOPLE of the State of New York, Respondent, v. Frank W. KINDLON, Appellant.

Supreme Court, Appellate Division,

Third Department.

July 20, 1995.

Roger M. Fitts, Public Defender (Raymond A. Kelly Jr., of counsel), Albany, for appellant.

Sol Greenberg, Dist. Atty. (George H. Barber, of counsel), Albany, for respondent.

Before MERCURE, J.P., and CREW, CASEY, YESAWICH and SPAIN, JJ.

CASEY, Justice.

Appeal from a judgment of the County Court of Albany County (Turner Jr., J.), rendered June 16, 1993, upon a verdict convicting defendant of the crimes of grand larceny in the second degree (six counts) and grand larceny in the third degree.

Defendant was charged in counts 1, 3 and 5 of the indictment with grand larceny in the second degree in violation of Penal Law § 155.40(1), committed by borrowing large sums of money from three separate victims on the pretext that he needed the money to finance fictitious law suits that would provide him with the funds necessary for the repayment of the loans. In counts 2, 4 and 6 of the indictment, defendant was charged with grand larceny in the second degree in violation of Penal Law § 155.40(2), which provides for extortion committed by instilling fear in the victims that a public officer will abuse his position and engage in conduct in respect to his official duties in such a way as to adversely affect each of the victims. The seventh count, grand larceny in the third degree, charges that defendant obtained various funds from the tenant of a newsroom under defendant's claim that the money given to him was necessary for expenses in renegotiating the tenant's lease that was about to expire and which did eventually expire. Four separate victims were involved in the indictment.

After a jury trial, defendant was found guilty of all counts and was sentenced as a second felony offender to 7 1/2 to 15 years in prison on each of the first six counts of the indictment, with counts 1 and 2 running concurrently to each other, counts 3 and 4 running concurrently to each other and counts 5 and 6 running concurrently to each other, but with the sentences otherwise running consecutively. On count 7, defendant was sentenced to 3 1/2 to 7 years in prison to run consecutive to the other sentences.

Initially, defendant argues that County Court erred in denying his motion pursuant to CPL 30.20 and 30.30. Defendant contends error in the summary denial of his motion because the People had not served opposing papers at that time. According to defendant, his motion should therefore have been granted. We disagree. Although County Court initially denied defendant's motion without having received the People's response, the response was filed with County Court later on the same day that the motion was decided. The court accepted and considered the response when it was received and stated that it was adhering to its prior determination. Since the motion was made on a Friday afternoon and was returnable the following Tuesday, County Court appropriately accepted the response as of the return date, given the reasonable notice requirement of CPL 210.45. As to the CPL 30.30 claim, defendant argues that although the People announced their readiness for trial on February 7, 1992, the People were not in fact ready because the People did not have necessary Rosario material and witnesses were unavailable. Dismissal for lack of Rosario material is appropriate only on a motion pursuant to CPL 30.20 and only if preclusion or a short continuance would violate defendant's constitutional and statutory right to a speedy trial (see, People v. Anderson, 66 N.Y.2d 529, 537, 498 N.Y.S.2d 119, 488 N.E.2d 1231). These conditions are not present here. Furthermore, the unavailability of a witness for a pretrial hearing without more does not establish a violation of the statute (see, People v. Tano, 169 A.D.2d 878, 564 N.Y.S.2d 607).

Considering defendant's constitutional right to a speedy trial (CPL 30.20), defendant claims that other criminal cases proceeded to disposition before his case, even though many of the cases were commenced after defendant's case and the defendants in those cases were not incarcerated awaiting trial. Even if defendant is correct, dismissal is not required pursuant to CPL 30.20(2) (see, People v. Murphy, 99 A.D.2d 613, 472 N.Y.S.2d 202). The 15-month delay between commencement of the action and the motion to dismiss does not, in and of itself, require a finding that defendant's right to a speedy trial was violated pursuant to CPL 30.20(1) or the State or Federal Constitution. Considering the relevant factors (see, People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303), we find no violation of defendant's constitutional right to a speedy trial (see, People v. Watts, 57 N.Y.2d 299, 456 N.Y.S.2d 677, 442 N.E.2d 1188).

Contrary to defendant's next argument, the indictment is not duplicitous, multiplicitous or vague. Pursuant to CPL 200.30, an indictment is duplicitous when one count of the indictment charges more than one offense. Where multiple acts constitute one scheme to commit grand larceny against a single victim, a count which so charges is not duplicitous (see, People v. Cox, 286 N.Y. 137, 36 N.E.2d 84; People v. Rosich, 170 A.D.2d 703, 567 N.Y.S.2d 749, lv. denied 77 N.Y.2d 1000, 571 N.Y.S.2d 926, 575 N.E.2d 412). Here, each count...