People v. Masselli

• Decision Date: 13 December 1962
• Citation: 234 N.Y.S.2d 929,17 A.D.2d 367
• Parties: The PEOPLE of the State of New York, Respondent, v. William MASSELLI, August Frank Mazzella, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 929

234 N.Y.S.2d 929

17 A.D.2d 367

The PEOPLE of the State of New York, Respondent, v. William MASSELLI, August Frank Mazzella, Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

Dec. 13, 1962.

Jerry Chandler, New York City, for appellants.

Irving Anolik, New York City, of counsel (Isidore Dollinger, Dist. Atty.) for respondent.

Before BOTEIN, P. J., and RABIN, VALENTE, McNALLY and EAGER, JJ.

RABIN, Justice.

Defendants appeal from judgments of conviction rendered against them on June 30, 1961, convicting each of them of the crime of attempted robbery in the third degree upon respective pleas of guilty. Each was sentenced to a prison term of 2 1/2 to 5 years.

By an indictment filed on September 20, 1957, in Bronx County, the defendants were charged with the crimes of kidnapping, robbery in the first degree and assault in the second degree. After trial they were both convicted of robbery in the first degree and assault in the second degree and on December 4, 1958, they were sentenced to terms in State prison. These convictions were appealed to this Court which, by order dated March 1, 1960, unanimously reversed the convictions and directed a new trial (10 A.D.2d 45, 196 N.Y.S.2d 908).

At the time of the entry of this Court's order of reversal the defendants were inmates of Clinton Prison by reason of a conviction in another county of the State. They received notice of the reversal on March 2, 1960 and on the same day they made request through the chief clerk of the prison, pursuant to Sec. 669-a, Code of Criminal Procedure, ¹ that the Bronx County indictment (underlying the conviction that had been reversed) be disposed of in accordance with that section. ² The chief clerk advised them that there could be no disposition of the Bronx indictment until a New Jersey warrant lodged against them at the prison had been disposed of. Nothing further was done either by the defendants or the prison authorities relative to the requests made under Sec. 669-a.

On January 16, 1961 (some ten months after defendants' communications with the chief clerk relative to Sec. 669-a) the defendants were produced in the Bronx County Court for trial. Counsel was subsequently appointed to represent them and thereafter, on March 20, 1961, the defendants moved to dismiss the indictment on the ground, inter alia, that the defendants had not been brought to trial within the 180 day period provided for in the section. The motions were denied on the ground that the district attorney of Bronx County had not received any request for a disposition of the indictments from the defendants and that accordingly the 180 day period had not commenced to run.

Subsequent to the denial of these motions the defendants pleaded guilty to attempted robbery in the third degree. The appeals from the judgments rendered upon such pleas are now before us. We are specifically asked to review the County Court's denial of the motions to dismiss the indictment based upon Sec. 669-a.

A threshold question that must be determined concerns itself with the power of this Court to review the orders denying the motions to dismiss. The district attorney contends that these motions are not part of the 'judgment-roll' (§ 485 C.C.P.) and thus are not reviewable (§ 517 C.C.P.). This contention is without merit. The Court of Appeals has held that such intermediate orders are appealable and that a subsequent plea of guilty does not bar their review (People v. Chirieleison, 3 N.Y.2d 170, 164 N.Y.S.2d 726, 143 N.E.2d 914; People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891, 57 A.L.R.2d 295).

Reaching the merits of the motions to dismiss the ultimate issue presented appears to be a rather narrow one--need the district attorney actually receive the notice pursuant to Sec. 609-a before the 180 day period commences to run? However, before entering upon a discussion of this question it may be will to first dispose of one additional preliminary question.

Section 669-a provides in subdivision 1(b) the method by which the prisoner effects service of the notice and request for disposition upon the district attorney. It provides that the notice and request 'shall be given or sent by the prisoner to the commissioner of correction who shall properly forward it * * * to the appropriate district attorney * * *'. Here the defendants' only communication was with the chief clerk of the prison. We conclude however--and the district attorney does not argue to the contrary--that service upon the chief clerk of the prison is, at least for purposes of Sec. 669-a, to be deemed service upon the Commissioner of Correction. A practical recognition of the limitations imposed upon the prisoner's freedom of communication requires that we so construe the statute if it is to have any meaning. The prisoner is obliged to communicate 'through channels' and when liaison is made with the chief clerk of the prison he should be deemed to have made contact with the Commissioner of Correction.

Having thus concluded that, in effect, the actions of the chief clerk were for the purposes with which we are here concerned, those of the Commissioner of Correction, we reach the ultimate question of whether the district attorney must actually receive the notice and request before the time to bring the indictment on for trial commences to run.

As aforesaid, subdivision 1(b) of Sec. 669-a provides the procedure to be followed by a prisoner in seeking to effect a disposition of any untried indictment pending against him. He is obliged to give or send his notice to the Commissioner of Correction. From that point forward there is nothing that he must do. It then becomes the obligation of the Commissioner to forward the notice and request together with the Commissioner's 'certificate' to the appropriate district attorney and Court.

Sec. 669-a gives to the Commissioner of Correction--and a fortiori to his subordinates--no discretion, but rather mandates him to forward a prisoner's notice and request for indictment disposition. There being no discretion, then the acts of the chief clerk were in violation of the duty imposed by the statute. Shall the consequences of such omission be visited upon the defendants so as to deprive them of the valuable rights sought to be given them in Sec. 669-a? We think not.

The obvious purpose of the section was to give prisoners the option of requiring that pending untried indictments be disposed of expeditiously. Such right was denied these defendants. The failure of the district attorney to be apprised of the notice and request is of no consequence where it was due to the failure of the correction authorities to perform a duty enjoined upon them by law. The Correction Department officials--as well as the district attorney--are agents and representatives of the People of the State of New York. As between the defendants and the sovereign, the burden of such omission should fall on the latter. To hold otherwise could well render the statute ineffectual and defeat the salutary purpose the legislature sought to effect (See People v. Esposito, Co.Ct., 201 N.Y.S.2d 83, 88).

It should be noted that...