People v. Randolph
| Decision Date | 25 February 1976 |
| Citation | 381 N.Y.S.2d 192,85 Misc.2d 1022 |
| Parties | The PEOPLE of the State of New York v. Vertis RANDOLPH, Defendant. |
| Court | New York Supreme Court |
Nicholas Ferraro, Kew Gardens, for the People by Jon Bevilacqua, Asst. Dist. Atty., Kew Gardens.
Vertis Randolph, pro se.
This petition for a writ of habeas corpus is actually a motion to vacate judgment on the grounds that the court lacks jurisdiction over the person of defendant (CPL, § 440.10(1a)). Among defendant's two contentions is an issue of first impression, namely, does the Agreement on Detainers (CPL, Art. 580) apply to a convicted but not yet sentenced defendant who is incarcerated in a sister state? Additionally, defendant contends that the delay of 20 months between plea and sentence deprives the court of jurisdiction over him and thereby compels vacation of his conviction and dismissal of the indictment.
Defendant Vertis Randolph was indicted in Queens County for grand larceny in the third degree. On May 14, 1974 he pleaded guilty to an attempt to commit that crime and he was continued on bail pending sentence which was to be imposed on June 13, 1974. Defendant never appeared for sentencing and on June 13, 1974 bail was declared forfeited and a bench warrant issued.
Defendant fled to North Carolina where he was arrested on an unrelated matter The New York authorities learned of his arrest and filed a detainer warrant against him there on August 6, 1974. On September 10, 1974 defendant was convicted of assault in North Carolina and sentenced to a prison term of seven years which he is currently serving. The New York warrant was then lodged at defendant's place of incarceration.
In October and December, 1974 defendant made motions in Queens Supreme Court addressed to his guilty plea. The motions were marked off calendar since defendant was not in the jurisdiction.
In February, 1975 the Supreme Court in Queens County received a communication from defendant inquiring into the disposition of his prior motions and into the indictment to which defendant had pleaded guilty. Defendant was notified that the motions would be disposed of when he appeared before the court.
In May, 1975 defendant again wrote to the court, this time concerning the detainer warrant lodged against him and the court sent the District Attorney a copy of the defendant's letter. That latest communication, received on May 5, 1975, will be considered a request for final disposition pursuant to Criminal Procedure Law, section 580.20, Article III(a), known as the Agreement on Detainers. If the Agreement applies to those in defendant's position, his motion must be granted since he was not sentenced within 180 days of his request.
The Agreement on Detainers, which has been adopted in North Carolina (G.S., §§ 148--89 to 148--95) provides, in relevant part, that where a detainer is lodged against a prisoner based upon an untried accusatory instrument of another state, that prisoner must be transported to the sister state for final disposition of the untried charges. The procedural framework for effectuating the Agreement is contained therein and is triggered by the prisoner's request for final disposition of the untried charges. (CPL, Article 580).
Throughout the statute are constant references to Untried (emphasis added) matters (e.g., CPL, § 580.20, Articles I, III, IV, V). In fact, Article V, section (d) states that, 'The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments * * *.' Nowhere does the statute provide that a request to be sentenced must be given the same prompt attention as the request to be tried.
Even though Article IX of the Agreement commands a liberal construction of the statute in order to effectuate its purposes, a judicially created amendment broadening the statute's applicability to tried but not sentenced defendants constitutes more than mere liberal construction. As noted in the Practice Commentary to Criminal Procedure Law, section 580.20 (McKinney's Cons.Laws of N.Y., Book 11A), because of its interstate applicability, no substantive changes are made in the statute. If the Agreement is to be enlarged to include those in the defendant's position, it is for the legislatures of the several signatory states to accomplish that result.
That a convicted but not sentenced defendant is not 'untried' within the meaning of the Agreement is borne out by Criminal Procedure Law, section 1.20(11), which provides that a trial concludes with the rendition of a verdict, or, in defendant's case, with the entry of a plea of guilty (see, also, CPL, § 1.20(11), (12) and (13)).
Since the pending matter is not untried and since the court has no authority to amend the statute, the court concludes that the first question regarding the applicability of the...
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