People v. Lomax

• Decision Date: 29 May 1980
• Parties: , 406 N.E.2d 793 The PEOPLE of the State of New York, Respondent, v. James LOMAX, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 937

428 N.Y.S.2d 937

50 N.Y.2d 351, 406 N.E.2d 793

The PEOPLE of the State of New York, Respondent, v. James LOMAX, Appellant.

Court of Appeals of New York.

May 29, 1980.

Michael J. Obus and Matthew Muraskin, Mineola, for appellant.

Denis Dillon, Dist. Atty. (Lawrence J. Schwarz, William C. Donnino and Anthony J. Girese, Asst. Dist. Attys., of counsel), for respondent

OPINION OF THE COURT

GABRIELLI, Judge.

Defendant James Lomax was arrested on March 23, 1977 and charged with having stolen certain tangible personal property at knifepoint. He was arraigned within 24 hours of the arrest, and on March 28, 1977, a Grand Jury handed up an indictment charging him with several counts of robbery in the first degree, grand larceny in the third degree and criminal possession of a weapon in the fourth degree. On March 29, defendant was arraigned on the indictment. Some nine and a half months later, on January 3, 1978, defendant's motion to dismiss the indictment on the ground that he had been deprived of his right to a speedy trial (CPL 30.20, 30.30) was summarily denied without an evidentiary hearing. His subsequent trial terminated inconclusively when the jury reported itself unable to agree upon a verdict and a mistrial was declared. Shortly thereafter, defendant pleaded guilty to a reduced charge of attempted robbery in the third degree.

On this appeal from the judgment of conviction entered upon the plea, which judgment was affirmed by a unanimous Appellate Division panel, defendant contends that the trial court's denial of his speedy trial motion was improper and that, consequently, he is entitled to a reversal of the judgment. ¹ Our view of the facts and circumstances below, however, leads us to a contrary conclusion. Accordingly, we hold that the judgment of conviction should be affirmed.

Our decision is based primarily upon the recitation of facts contained within the sworn affidavit submitted by defense counsel in support of the speedy trial motion. In this affidavit, counsel noted that the original indictment of March 28, 1977 had been dismissed on June 14 as a result of a motion made by defense counsel under CPL 210.30. The District Attorney had been granted leave to resubmit (see CPL 210.45, subd. 9), however, and on June 23, 1977, a new indictment encompassing the same criminal charges was handed up, whereupon defendant was again arraigned. Toward the end of September, 1977, according to defendant's affidavit, a hearing was held upon a second defense motion requesting, among other relief, an inspection of the minutes of the second Grand Jury's deliberations, but the trial court's final decision rejecting defendant's request was not announced until November 2. Finally, the affidavit stated, although defendant appeared on December 8, 1977 for his scheduled trial, a three-week adjournment was granted in order to accommodate the District Attorney, whose chief witnesses were vacationing out of the State.

In the present appeal, defendant contends that the foregoing information, presented to the Trial Judge in affidavit form, was in itself sufficient to warrant dismissal of the indictment under CPL 30.30, particularly in view of the fact that the People did not in any way attempt to controvert his factual allegations. At the very least, defendant argues, the trial court should have conducted a hearing to ascertain whether the speedy trial claim asserted in defendant's motion papers had any factual or legal merit. Because we find that defendant's motion papers were inadequate on their face, however, we conclude that the trial court acted within the scope of its discretionary authority when it summarily denied the motion and directed the parties to proceed to trial.

Preliminarily, we note that the starting point for our analysis of defendant's speedy trial claim must be March 24, 1977, the date upon which defendant was first arraigned and the first accusatory instrument in the criminal proceeding presumably was filed. This conclusion flows directly from the language of CPL 30.30 (subd. 1, par. (a)), which provides that, in felony cases, the People must be ready for trial within six months of "the commencement of a criminal action". Under the carefully structured definitional provisions of the Criminal Procedure Law, "(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" (CPL 1.20, subd. 17; see 100.05). As we interpret this language, there can be only one criminal action for each set of criminal charges brought against a particular defendant, notwithstanding that the original accusatory instrument may be replaced or superseded during the course of the action. This is so even in cases such as this, where the original accusatory instrument was dismissed outright and the defendant was subsequently haled into court under an entirely new indictment. Indeed, the notion that the continuity of a criminal action remains intact, even through the issuance of successive indictments, is supported by the provisions of CPL 210.20 (subd. 4), which permits the District Attorney to seek a new indictment after the first indictment has been dismissed, but only upon the direction of the trial court (cf. CPL 190.75, subd. 3).

Obviously, if there can be only one criminal action for any given set of charges, there also can be only one date which marks the "commencement" of the action, the date on which the first accusatory paper is filed. Thus, in the present case, the criminal action must be deemed to have been commenced for purposes of CPL 30.30 on the date when the original felony complaint was filed, March 24, 1977, and not on June 23, when the second indictment was returned.

Nevertheless, although more than six months had elapsed since that date without a statement of readiness by the People (see People v. Hamilton, 46 N.Y.2d 932, 415 N.Y.S.2d 208, 388 N.E.2d 345), it cannot be said on the basis of the present record that defendant was entitled to a dismissal of the charges against him pursuant to CPL 30.30. The rules for determining pretrial dismissal motions such as that made by defendant are set forth in CPL 210.45. Under that section, a motion to dismiss an indictment must be granted on the motion papers and without a further evidentiary hearing if "(a) (t)he moving papers allege a ground constituting legal basis for the motion * * * ; and (b) (s)uch ground, if based upon the existence or occurrence of facts, is supported by sworn allegations of all facts essential to support the motion; and (c) (t) he sworn allegations of fact essential to support the motion are either conceded by the (P)eople to be true or are conclusively substantiated by unquestionable documentary proof" (CPL 210.45, subd. 4).

Applying this provision in the speedy trial context, we have held that where a defendant moves to dismiss on the grounds specified in CPL 30.30 and includes in his moving papers sworn allegations that there has been an unexcused period of delay in excess of the statutory maximum, the motion must be granted summarily unless the People in some way controvert the factual basis for the motion (People v. Gruden, 42 N.Y.2d 214, 397 N.Y.S.2d 704, 366 N.E.2d 794; cf. People v. Weaver, 49 N.Y.2d ---, --- N.Y.S.2d ---, --- N.E.2d ----; People v. Dean, 45 N.Y.2d 651, 412 N.Y.S.2d 353, 384 N.E.2d 1277). In the present case,...