People v. Monaghan

Decision Date18 May 1970
Citation34 A.D.2d 815,311 N.Y.S.2d 722
PartiesThe PEOPLE, etc., Respondent, v. Charles Vincent MONAGHAN, Appellant.
CourtNew York Supreme Court — Appellate Division

Thomas J. Mackell, Dist. Atty., Queens County, Kew Gardens, for respondent, Cornelius J. O'Brien, Asst. Dist. Atty., of counsel.

Milton Adler, New York City, for defendant-appellant, Joel Berger, New York City, of counsel.

Before RABIN, Acting P.J., and MARTUSCELLO, LATHAM, KLEINFELD and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered November 28, 1966, convicting him of assault in the second degree with intent to commit sodomy, upon his plea of guilty in 1958, and sentencing him to imprisonment for one to five years. The appeal brings up for review two orders of said court, one dated March 18, 1966 which denied defendant's motion to dismiss the indictment for lack of prosecution and one dated April 22, 1966, which granted his motion for reargument and, upon reargument, adhered to the original decision.

Appeal from order dated March 18, 1966, dismissed as academic. That order was superseded by the order granting reargument.

Appeal from so much of the order dated April 22, 1966 as granted reargument dismissed. Defendant was not aggrieved thereby.

Judgment and so much of the order dated April 22, 1966 as adhered to the original decision denying defendant's motion to dismiss the indictment reversed, on the law and the facts; motion granted; indictment dismissed; and defendant discharged.

On October 27, 1958 defendant was indicted for sodomy in the first degree (two counts), sodomy in the second degree, assault in the second degree with intent to commit sodomy, carnal abuse of a child as a felony, and endangering the life or health of a child (with respect to impairment of the child's morals). On November 20, 1958, he pleaded guilty to assault in the second degree with intent to commit sodomy, in satisfaction of the entire indictment, and was released on bail to await sentencing on January 5, 1959. He failed to appear for sentence on the appointed date and on January 12, 1959 his bail was forfeited and a bench warrant was issued.

In a telegram dated September 10, 1959, the Police Department of Houston, Texas, notified the District Attorney of Queens County that defendant was in custody in Texas, awaiting trial on 'several' forgery charges. On September 11, 1959, the Chief Clerk of the former County Court of Queens County wrote a letter to the Harris County (Texas) Sheriff's Office in Houston, in which he stated that a warrant for defendant's arrest had already been forwarded to the authorities in Texas, that 'there shouldn't be any difficulty' in extraditing defendant and that he 'would appreciate * * * (the Sheriff advising him) as soon as possible so that our Warrant Officer may proceed to your jurisdiction to apprehend the defendant.' In a letter dated September 14, 1959, the Houston Police Department advised the Chief Clerk that the Queens warrant had been placed as a detainer against defendant, that defendant had not yet been brought to trial and that the Clerk would 'be notified * * * when * * * (to) come get this subject.' No formal demand for extradition was made at that time, despite the fact that Texas, although not a party to the uniform Agreement on Detainers (see Code Crim.Proc. § 669--b), is a signatory to the uniform Criminal Extradition Act (see Vernon's Texas Statutes Ann., Code of Criminal Procedure, vol. 5, art. 51.13, § 19; see, also, Code Crim.Pro. § 832), pursuant to which the Governor of Texas has discretion to surrender, upon demand of the executive authority of another State, a person against whom 'a criminal prosecution has been instituted * * * under the laws of * * * (Texas) and is still pending' at the time of the demand.

By letter dated November 13, 1959, the Texas Sheriff's Office notified the Chief Clerk that defendant had been convicted of six counts of forgery; that he had been sentenced to three years on each count, the sentences to run concurrently; that he was to be released to the custody of the Texas Department of Corrections 'as soon as possible'; and that the Queens County warrant would be forwarded to the Chief of the Bureau of Records...

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17 cases
  • People v. Harper, AP-7
    • United States
    • New York City Court
    • August 25, 1987
    ...deemed unreasonable per se. See People v. Drake, supra at 61 N.Y.2d 359, 366, 474 N.Y.S.2d 276, 462 N.E.2d 376; People v. Monaghan, 34 A.D.2d 815, 311 N.Y.S.2d 722. If, however, the delay is found to have been caused by the defendant, it should not be attributed to the State. See People v. ......
  • People v. Drake
    • United States
    • New York Court of Appeals
    • March 29, 1984
    ...judicial or prosecutorial negligence or mistake, a loss of jurisdiction results and the indictment must be dismissed (People v. Monaghan, 34 A.D.2d 815, 311 N.Y.S.2d 722 [a seven-year delay in sentencing was held to be unreasonable inasmuch as the prosecutor made no effort to extradite defe......
  • Baker v. Schubin
    • United States
    • United States State Supreme Court (New York)
    • December 5, 1972
    ......, simply a letter or note sent to the prison by a prosecutor, court, police chief, parol board, or any other official empowered to take people [72 Misc.2d 416] into custody, asking to be informed by the prison officials when the inmate in question is to be released.'.         The ...Wallace, 26 N.Y.2d 371, 310 N.Y.S.2d 484, 258 N.E.2d 904; People v. Winfrey, 20 N.Y.2d 138, 281 N.Y.S.2d 823, 228 N.E.2d 808; People v. Monaghan, 34 A.D.2d 815, 311 N.Y.S.2d 722). Once again it is to be observed that this court does not have the power to dismiss an out-of-state accusatory ......
  • State v. Rogers, Docket No. 26895.
    • United States
    • Court of Appeals of Idaho
    • July 17, 2003
    ...the defendant caused the delay by absconding or by using an alias; defendant did not have a duty to demand sentence); People v Monaghan, 311 N.Y.S.2d 722, 725 (N.Y. App. Div. 1970) (seven-year delay unreasonable because the state never made a formal attempt to extradite defendant from Texas......
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