People v. Pfitzmayer
| Decision Date | 28 December 1972 |
| Citation | 72 Misc.2d 739,340 N.Y.S.2d 85 |
| Parties | PEOPLE of the State of New York v. I Albert L. PFITZMAYER, Defendant. |
| Court | New York County Court |
Wiliam Cahn, Dist. Atty., Nassau County, Mineola, for the people.
Morrow D. Mushkin, Garden City, for defendant.
This is a motion by the defendant pursuant to CPL Sec. 240.20 in which he seeks an order dismissing the four counts of the indictment on the grounds that (1) the first count of the indictment is untimely under CPL Sec. 30.10 and (2) that the remaining three counts resulted from a Grand Jury proceeding which was defective within the meaning of CPL Sec. 210.35.
In the first count of the indictment the defendant is charged with Official Misconduct, a Class 'A' Misdemeanor, in violation of Penal Law Sec. 195.00 committed during the month of April, 1970. Under the Code of Criminal Procedure, which was in effect at the time the crime was committed, prosecution of this crime would have been barred after the lapse of two years. (C.C.P. Sec. 142, subd. 1.) Since the indictment is dated June 7, 1972, the prosecution would have been untimely.
However, prior to the expiration of the two-year period, the Legislature enacted the new C.P.L., effective September 1, 1971, which provides in Sec. 30.10(3)(b):
'A prosecution for any offense involving misconduct in public office by a public servant may be commenced at any time during the defendant's service in such office or within five years after the termination of such service; provided however, that in no event shall the period of limitation be extended by more than five years beyond the period otherwise applicable under subdivision two.'
This section does not exclude crimes committed prior to the effective date and, indeed, C.P.L. Sec. 1.10(1) specifically states:
'The provisions of this chapter apply exclusively to: (a) All criminal actions and proceedings commenced upon or after the effective date thereof . . .'.
Since the filing of the instant criminal indictment (June 7, 1972) initiated the criminal action against the defendant (C.P.L. Sec. 1.20(17)), the timeliness of the indictment is governed by C.P.L. Sec. 30.10(3)(b).
Nevertheless, the defendant argues that the extension of the statutory period of limitations would, if applied to crimes committed prior to the enactment of such law, constitute an Ex post facto law in violation of Art. I, Sec. 10 of the United States Constitution. In 1798 in the case of Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648, the United States Supreme Court announced what is now considered to be the classic definition of an Ex post facto law:
(Calder v. Bull, supra, at p. 390.)
Although the Calder standard continues to serve as the touchstone in the Ex post facto area, it has over the years been slightly altered. Thus, it is now well settled that certain statutory changes in the rules of evidence enancted after the commission of a crime, may be employed at the trial without violating the constitutional proscription. (Beazell v. Ohio,269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216.) On the other hand, the rule has now been extended to include and invalidate laws which would edeprive an accused of a 'substantial right or immunity' possessed by him at the time of the commission of the offense charged. (Mallett v. North Carolina, 181 U.S. 589, 21 S.Ct. 730, 45 L.Ed. 1015.)
In the instant case, the Legislature's act of extending the statute of limitations relating to offenses such as those with which the defendant is charged, clearly 'did not make that a criminal act which was innocent when done; did not aggravate an offense or change the punishment and make it greater than when it was committed; did not alter the rules of evidence, and require less or different evidence than the law required at the time of the commission of the offense.' (Mallett v. North Carolina, supra, at p. 597, 21 S.Ct. at p. 733.) The only remaining question then is whether it deprived the accused of any substantial right or immunity possessed by him at the time of the commission of the offense charged.
Whether the defendant is deprived of a substantial right when the statute of limitations is extended, thereby increasing the period of his criminal liability, has not yet been determined by the Supreme Court nor by the courts of this State. However, in People ex rel. Reibman v. Warden of County Jail of Salem, New York, 242 App.Div. 282, 275 N.Y.S. 59, while deciding a somewhat different issue, the Court announced certain general principles which are applicable here:
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