People v. Morris

• Decision Date: 02 March 1994
• Citation: 160 Misc.2d 648,610 N.Y.S.2d 725
• Parties: The PEOPLE of the State of New York, Plaintiff, v. John MORRIS, Defendant.
• Court: New York County Court

Page 725

610 N.Y.S.2d 725

160 Misc.2d 648

The PEOPLE of the State of New York, Plaintiff, v. John MORRIS, Defendant.

Westchester County Court.

March 2, 1994.

Jeanine Pirro, Dist. Atty. of Westchester County, White Plains, for plaintiff.

Stephen J. Pittari, Legal Aid Soc. of Westchester County, White Plains, for defendant.

PETER M. LEAVITT, Judge.

The defendant has been indicted for the crimes of Burglary in the Second Degree, Grand Larceny in the Fourth Degree (2 counts), Criminal Possession of Stolen Property in the Fourth Degree (2 counts) and Criminal Possession of a Weapon in the Fourth Degree (7 counts) all of which allegedly occurred in the Village of Rye Brook between August 31, 1992 and September 8, 1992.

The defendant now moves by Order to Show Cause, Attorney's Affirmation and Reply Affirmation for dismissal of the indictment pursuant to Sections 580.20, 210.20(1)(h) and 210.20(1)(g) of the Criminal Procedure Law. The People's response consists of an Affirmation in Opposition, Memorandum of Law and Sur-Reply Affirmation.

The following facts are undisputed:

As a result of the investigation of the burglary of a house in Westchester County a felony complaint was filed, in which the defendant herein was charged with said crime, on September 21, 1992. Meanwhile, the defendant had been apprehended in Connecticut on September 17, 1992, and charged with the commission of crimes in that State which had pre-dated the New York burglary.

The District Attorney for Westchester County obtained the instant indictment and a warrant thereon, and on November 18, 1992, lodged a detainer in Connecticut pursuant to the Interstate Agreement On Detainers (hereinafter, "IAD"). [CPL 580.20] The Connecticut charges were disposed of and the defendant began serving a sentence of incarceration therein on January 14, 1993.

On February 4, 1993, the District Attorney sent a "Request For Temporary Custody" to the authorities at the place of the defendant's imprisonment in Connecticut, pursuant to Article IV(a) of the IAD. On March 11, 1993, the defendant filed a "Notice Of Place Of Imprisonment And Request For Disposition [of the instant untried indictment]" (hereinafter, "Notice And Request") with Connecticut officials for delivery to the District Attorney pursuant to Article III(a) of the IAD. The Connecticut authorities simultaneously sent to the District Attorney the defendant's said Notice And Request and an "Offer To Deliver Temporary Custody", both of which forms were actually delivered on March 24, 1993.

The defendant was produced in the State of New York, pursuant to the District Attorney's detainer, on April 16, 1993. On April 20, 1993, the defendant was brought before this Court (Hon. Jeanine Pirro, J.C.C., presiding) on the warrant, and the matter was adjourned to April 21, 1993, for assignment of counsel. On April 21st, the defendant was arraigned, entered pleas of not guilty and requested, and was granted, time for the submission of pre-trial motions; the People announced their readiness for trial.

The defendant's pre-trial motions, including a motion to inspect the minutes of the Grand Jury proceedings and dismiss the indictment pursuant to CPL 210.30, were served and filed on June 18, 1993. The District Attorney ordered a transcript of the Grand Jury minutes on June 22, 1993, and served and filed its answer to the defendant's motions on June 24, 1993.

By Decision and Order of the Hon. John R. LaCava, J.C.C., entered August 5, 1993, ¹ this Court determined all of the defendant's motions except for the CPL 210.30 motion; Judge LaCava reserved decision on said motion because the Court had not yet been provided with a copy of the Grand Jury minutes for inspection. On August 10, 1993, the defendant appeared with counsel before Judge LaCava, and the case was marked "Ready for Trial", despite the fact that the CPL 210.30 motion was still undecided. The Grand Jury minutes were provided to Judge LaCava on September 22, 1993, and, by Supplemental Decision and Order entered October 5, 1993, he denied the motion to dismiss following inspection.

Defendant's counsel was actually engaged on other criminal matters before other judges of this Court on 9 days between October 5, 1993 and December 31, 1993. Counsel was also actually engaged in another criminal matter before Judge LaCava on 6 days during said period.

The indictment herein was transferred to this Part as of January 3, 1994. On January 10, 1994, the defendant's case was called for conference during which defense counsel advised this Court and the District Attorney that the indictment must be dismissed for failure to commence trial in timely fashion pursuant to the IAD. The defendant's written motion for such relief was served on January 20, 1994.

Finally, counsel was actually engaged on another criminal matter, before Judge LaCava, from January 3, 1994 to February 3, 1994. At no time was the defendant's case called for the commencement of trial or pre-trial hearings, and no adjournments or continuances were requested or granted in open court after August 5, 1993.

The IAD, to which the State of New York is a signatory (CPL 580.20), is an interstate compact which provides specific time periods in which a prisoner who is serving a sentence of imprisonment in one jurisdiction--i.e., the "Sending State" [CPL 580.20, Art. II(b) ]--must be brought to trial on an indictment in another jurisdiction--i.e., the "Receiving State" [CPL 580.20, Art. II(c) ]. The determination of which time period applies, as well as the date on which such period commences, is dependent upon who initiates the process by which the Receiving State obtains custody of the prisoner.

Thus, if the prisoner is produced in the Receiving State pursuant to his request for final disposition of an untried indictment pending in such State he must be brought to trial within 180 days [CPL 580.20, Art. III(a) ], and the period is measured from the date of actual delivery of the prisoner's request to the appropriate court and prosecutorial authorities of the Receiving State [Fex v. Michigan, 507 U.S. ----, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993) ]. ² Whereas, if the prisoner is produced pursuant to the prosecutor's Request For Temporary Custody trial must be commenced within 120 days, measured from the date of his arrival in the Receiving State. [CPL 580.20, Art. IV(c) ] This case presents a rather unusual scenario in that the defendant and the District Attorney herein each sought to initiate the process by which the defendant was, ultimately, produced in New York.

While the statute itself provides no guidance, the People argue that the Article III period applies whenever a prisoner files a request for final disposition regardless of whether a prosecutor's request is also filed or which is filed first. The People cite no statutory or judicial authority for this construction other than the drafters' use of the word "whenever" in the language of Article III(a), to wit:

"Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment ..."

[CPL 580.20, Art. III(a) (emphasis added) ]

The Court finds this proposed construction to be both inventive and intriguing, but entirely unpersuasive and contrary to the IAD's own statutory directive that its provisions, "shall be liberally construed so as to effectuate its purposes". [CPL 580.20, Art. IX(1); see also, People ex rel. Kendall v. Follette, 47 A.D.2d 546, 363 N.Y.S.2d 97 (2nd Dept., 1975).] Rather, given its normal meaning in the context of its usage, the word "whenever" describes the circumstances under which a prisoner may invoke the mandates of Article III by filing a request for disposition [cf., People v. Reilly, 136 A.D.2d 355, 527 N.Y.S.2d 234 (2nd Dept., 1988) ]; it does not indicate a preference for the invocation of Article III over, or to the exclusion of, Article IV. Indeed, although the issue seems never to have been addressed in any reported decision of a court of this State, those courts of other jurisdictions which have addressed it have declined, as does this Court, to construe the IAD so as to give priority to a request made pursuant to one Article to the exclusion of one made pursuant to the other. [See, e.g., Price v. State, 237 Ga. 352, 370-1, 227 S.E.2d 368 (1976); Pittman v. State, 301 A.2d 509 (Del.Supr.Ct., 1973).] ³

Since both arguably apply, the sounder practice, by far, is to compute the period of delay under each Article to determine whether either has been violated. In any event, the result would be the same pursuant to either computation in the circumstances herein.

The making of a motion to dismiss for a violation of the IAD tolls the applicable time period while the motion is pending. [U.S. v. Dawn, 900 F.2d 1132, 1136 (7th Cir., 1990).] The instant motion was made on January 20, 1994--i.e.: 302 days since the defendant's request was delivered, thereby invoking Article III, on March 24, 1993, and 279 days since the defendant's arrival in New York, pursuant to the District Attorney's request under Article IV, on April 16, 1993. Thus, the defendant has alleged a delay in excess of the period of time in which trial must commence under either Article, and the burden now shifts to the People to show that any particular period should be excluded from the computation. [CPL 210.45(4); cf., People v. Berkowitz, 50 N.Y.2d 333, 428 N.Y.S.2d 927, 406 N.E.2d 783 (1980).]

So far as is relevant herein, there are two bases upon which a period of delay is tolled and excludable under the IAD, and they apply regardless of whether the periods are computed pursuant to Article III or IV. To wit: "for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or...