People v. Rivera
| Decision Date | 05 March 1979 |
| Parties | PEOPLE of the State of New York v. Juan RIVERA. |
| Court | New York Supreme Court |
Eugene Gold, Dist. Atty., of Kings County by Edward A. Robertson, Asst. Dist. Atty., for the People.
Leon B. Polsky, New York City, Legal Aid Society, for defendant by Claudia Davidson, New York City.
This is a motion by the defendant for an order dismissing the indictment pursuant to sections 210.20(1) and 30.30 of the Criminal Procedure Law on the ground that he has been denied a speedy trial.
The defendant was arrested on February 26, 1978. He was charged with the theft of food stamps and cash amounting to approximately $36,000 from a check-cashing establishment on November 23, 1977.
A chronology of the case is as follows: On February 27, 1978 the defendant was The defendant was arraigned on the indictment in Criminal Term, Part I, on December 15, 1978 and the case was adjourned for conference in Part IA, to January 11, 1979. In the interim, the defendant brought the instant motion returnable that date. On January 11th the case was adjourned by consent to January 18th. On January 18, 1979 the case was conferenced in Part 1A. There being no disposition, the case and this motion were assigned to this trial part and adjourned to January 26, 1979. On that date argument on the motion was adjourned to February 8, 1979, when argument was heard and decision reserved.
arraigned in APAR I, Criminal Court, and bail was set at $1,000. The case was adjourned to March 2, 1978. On March 2nd in APAR II bail was reduced to $1.00. The case was adjourned by consent to April 10, 1978 and amarked final against both sides. On April 10, 1978 both sides were ready but the case was adjourned by the court due to a congested calendar. On May 4, 1978 a preliminary hearing took place and the case was held for action of the grand jury. Seven months later, on December 5, 1978, an indictment was filed charging the defendant with grand larceny in the second degree.
The defendant contends that there has been a clear violation of his constitutional and statutory rights. The delay from February 27, 1978, when criminal proceedings were instituted, to the present exceeds the six month period permitted by statute, within which a case must be brought to trial. He argues that since the delay is not attributable to him, the motion to dismiss the indictment must be granted.
The People concede that the period of delay was more than six months. However, they contend that there are justifiable reasons for the delay, making it excludable from CPL section 30.30. They argue that the delay cannot be charged against them and therefore the indictment should not be dismissed.
As applicable to this motion, Criminal Procedure Law section 210.20(1)(g) provides that where a defendant has been denied a speedy trial a motion to dismiss an indictment may be granted. Section 30.30(1)(a) provides that where the People are not ready for trial within six months from the commencement of a criminal action charging a felony the indictment must be dismissed. A criminal action commences with the filing of an accusatory instrument (CPL §§ 1.20(16) and 100.05). If successive accusatory instruments are filed, as in this case, the action commences when the first instrument is filed (CPL §§ 1.20(16) and 100.05).
Therefore, the time period with which we are concerned in this case is the time from the filing of the felony complaint in Criminal Court on February 27, 1978 to the filing of the indictment on December 5, 1978. This constitutes a pre-indictment delay of nine months and eight days. However, a dismissal is not automatic because the delay exceeds six months.
Although an unreasonable delay in prosecuting a defendant constitutes a denial of due process (People v. Staley, 41 N.Y.2d 789, 396 N.Y.S.2d 339, 364 N.E.2d 1111; People v. Winfrey, 20 N.Y.2d 138, 281 N.Y.S.2d 823, 228 N.E.2d 808), when dismissing an indictment on a speedy trial claim the court must take several factors into consideration: "(1) The extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay." (People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 82, 335 N.E.2d 303, 306).
None of these factors alone is determinative of a speedy trial claim. They must all be balanced one against another.
The defendant, in the case at bar, claims that he has been prejudiced as the result of a delay of more than six months. Aside from this bald assertion he makes no showing of actual prejudice. There is no violation of due process because of a delay exceeding six months (People v. Adams, 46 A.D.2d 749, 360 N.Y.S.2d 669 affd. 38 N.Y.2d 605, 381 N.Y.S.2d 847, 345 N.E.2d 318). Even where there are claims of prejudice of a specific nature, the court must first inquire into the reason for the delay. Dismissal is appropriate only if the court determines that the delay is not justified (see People v. Goodman, 44 A.D.2d 862, 355 N.Y.S.2d 217).
When the delay is long enough the charges may be dismissed whether or not the defendant has shown prejudice (People v. Singer, 44 N.Y.2d 241, 405 N.Y.S.2d 17, 376 N.E.2d 179; People v. Staley, supra; People v. Winfrey, supra ). The delays in these cases were almost four years, 31 months and 41/2 years, respectively, and there was no showing that the delays were justified. We can conclude, therefore, that a defendant is entitled to a dismissal in the absence of prejudice when the commencement of the action is delayed for a lengthy period Without good cause (see People v. Singer,supra; People v. Staley, supra; People v. Winfrey, supra ).
We must now turn to the reasons for the delays in this case to determine whether they were justified.
Subdivision four of section 30.30 of the CPL recognizes that there are delays in the criminal justice system. The actual delays in a case must be computed in light of this subdivision which states that certain delays must be excluded. The delays in this case can be divided into two periods. The first is the period between the filing of the felony complaint and the preliminary hearing. The second is the period between the preliminary hearing and the filing of the indictment.
The First Period : This case was adjourned on consent from March 2, 1978 to April 10, 1978 due to a superseding commitment of the defendant's. A superseding commitment and an adjournment by consent are excludable periods of delay under CPL 30.30 subd. 4, which states:
Therefore, this period of time, a little over one month, cannot be computed in the time charged against the People.
The delay from April 10, 1978 to May 4, 1978 was caused by a congested court calendar. On April 10, 1978 both sides were ready for the preliminary hearing but the case was adjourned by the court to May 4, 1978. This period of time also constitutes an excusable delay (see People ex rel. Franklin v. Warden, 31 N.Y.2d 498, 341 N.Y.S.2d 604, 294 N.E.2d 199).
In the Warden cases four defendants petitioned by way of writs of habeas corpus for release from custody because they were incarcerated for a period greater than six months due solely to their inability to make bail.
The People were ready for trial within the statutory period but due to congested calendars and lack of court facilities the trials were delayed. The court held that CPL 30.30 could not be read to demand not only that the People be ready for trial within six months but also that the court facilities be available. The writs of habeas corpus were dismissed because the delay of more than six months was caused by calendar congestion and lack of adequate facilities. The court held the delays were not such as to constitute a denial of the constitutionally protected right to a speedy trial.
The Warden cases are similar to the case at bar. The period from April 10, 1978 to May 4, 1978 should not be charged against the People where the defendant was not incarcerated and the delay caused by congestion of the court calendar was not greater than six months, but merely three and one-half weeks.
The delay now attributable to the People can be reduced by a little less than two months, but there still exists a pre-indictment delay of over seven months which brings us to the second period.
The Second Period : Does the period of time between the preliminary hearing on May 4, 1978, when the case was held for action of the grand jury, and December 5, 1978, when a indictment was filed, constitute an excusable period of delay? The People contend that this period of time falls under the "exceptional circumstances" exclusion of section 30.30, subdivision 4(g) of the Criminal Procedure Law, which provides as follows:
4. "In computing the time within which the people must be ready for trial * * *, the following periods must be excluded:
(g) other periods of delay occasioned by exceptional circumstances, including but not limited to, the period of delay resulting from a continuance granted at the request of a district attorney * * * ."
During the period of May 4, 1978 to early September 1978, there was a delay in presenting this case to the grand jury. The reason given for this delay in presentation was an investigation which the United States Attorney's office and the United States Department of Agriculture were conducting. The...
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