People v. Overton

• Decision Date: 19 November 1976
• Citation: 389 N.Y.S.2d 253,88 Misc.2d 531
• Parties: The PEOPLE of the State of New York v. Roosevelt OVERTON, Defendant.
• Court: New York City Court

Page 253

389 N.Y.S.2d 253

88 Misc.2d 531

The PEOPLE of the State of New York v. Roosevelt OVERTON, Defendant.

Criminal Court of the City of New York, New York County, Jury I.

Nov. 19, 1976.

William Gallagher, The Legal Aid Society by John Lewis, New York City, of counsel, for defendant.

Robert M. Morgenthau, Dist. Atty., New York County by Allen G. Reiter, Asst. Dist. Atty., New York City, for the People.

E. LEO MILONAS, Judge:

The defendant was arraigned on August 20, 1975 on a felony complaint charging assault in the second degree, criminal possession of a weapon in the fourth degree and criminal mischief in the third degree (Penal Law §§ 120.05, 265.01, and 145.05). On November 5, 1975, after a number of adjournments, a preliminary hearing was held at which the original charges were reduced to harassment and criminal mischief in the fourth degree (Penal Law §§ 240.25 and 145.00), and the matter was set down for trial for December 1, 1975. Following some more adjournments, the defendant brought a motion under section 30.30 of the Criminal Procedure Law seeking dismissal of the action on the ground of denial of his right to a speedy trial. Relying upon CPL section 30.30(5)(c), the court denied the motion, since the delay involved was well within the ninety-day period permitted by the statute, as calculated from the date of the filing of the new accusatory instrument.

According to section 30.30(5)(c) of the CPL:

'Where a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced or converted to an information, prosecutor's information or misdemeanor complaint pursuant to article 180 or a prosecutor's information is filed pursuant to section 190.70, the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed. . . .'

The defendant now challenges the constitutionality of this provision as being in violation of the due process and equal protection clauses of the Constitutions of both the State of New York and of the United States. He argues that section 30.30(5)(c) of the CPL gives conclusive weight to the allegations contained in the felony complaint, thus depriving him of his right to due process. In support of his contention, he cites People v. Brian R., 78 Misc.2d 616, 356 N.Y.S.2d 1006 (Sup.Ct., N.Y. County, 1974), aff'd 47 A.D.2d 599, 365 N.Y.S.2d 998 (1st Dept.), which declared unconstitutional CPL section 720.10, subd. 2, par. a. Under this provision, youthful offender treatment was not available to an otherwise eligible youth 'indicted' for a class A felony. The court held that in relying upon the grade of offense charged, as opposed to the grade of offense for which the youth is ultimately found guilty, the law gave conclusive weight to the untested allegations of the indictment. This, the court stated, was contrary to the due process clauses of the State and Federal Constitutions, and, since the law irrationally discriminated against those youths charged with class A felonies, it also constituted a violation of the equal protection of the laws.

However, in view of People v. Drayton, 39 N.Y.2d 580, 385 N.Y.S.2d 1, 350 N.E.2d 377 (1976), Brian R. would seem to be of questionable authority. In Drayton, there was a challenge to the constitutionality of CPL section 720.20(1), which provides that a court may, in its discretion, find that an eligible youth is a youthful offender, except where the conviction occurs in a local criminal court and the eligible youth had not prior to the commencement of trial or entry of a plea of guilty been convicted of a crime or adjudged a youthful offender, then the court must find that he is a youthful offender. The court held that the validity of the statute must be determined through a rational basis test because the classification does not involve either a suspect classification or a fundamental interest. The distinction between youths charged in superior rather than local criminal courts is not arbitrary, the court concluded. It is founded on the nature of the crimes over which such courts have trial jurisdiction, and there is thus a rational basis for distinguishing between a youth accused of a felony and one charged with a misdemeanor.

Further, the defendant would apparently have this court raise to a constitutional mandate what is no more than a statutory scheme. The time limitations within section 30.30 of the CPL are considerably stricter than those required by...