People v. Rodriguez

• Decision Date: 04 June 1974
• Citation: 45 A.D.2d 41,356 N.Y.S.2d 60
• Parties: The PEOPLE of the State of New York, Respondent, v. Fernando RODRIGUEZ, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 60

356 N.Y.S.2d 60

45 A.D.2d 41

The PEOPLE of the State of New York, Respondent, v. Fernando RODRIGUEZ, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

June 4, 1974.

Carolyn Wheat, New York City, of counsel (William E. Hellerstein and William J. Gallagher, New York City), for defendant-appellant.

Jeffrey Philip Sinensky, Far Rockaway, of counsel (Mario Merola, Dist. Atty.), for respondent.

Before NUNEZ, J.P., and KUPFERMAN, MURPHY, LUPIANO and LYNCH, JJ.

LYNCH, Justice:

The defendant was convicted after trial of criminally selling a dangerous drug in the third degree and criminal possession of a dangerous drug in the fourth degree. He had been indicted on June 14, 1971 and his case was moved for trial fifteen months later, on September 11, 1972. In the interim he had been convicted of a crime in Puerto Rico and since November 26, 1971 had been serving his sentence in the Atlanta Federal Penitentiary. Prior to the Voir dire on the trial herein, he moved orally to dismiss the indictment for failure to be accorded a speedy trial (CPL § 30.20; Sixth Amendment to the U.S. Constitution, held applicable to the states, Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1).

The motion, having been made prior to the commencement of the trial, was timely (CPL § 210.20, subd. 2). The defendant's incarceration in Atlanta can serve neither as an explanation for the delay nor as an excuse (People v. Piscitello, 7 N.Y.2d 387, 198 N.Y.S.2d 273, 165 N.E.2d 849; People v. Wallace, 26 N.Y.2d 371, 310 N.Y.S.2d 484, 258 N.E.2d 904).

The defendant's counsel stated to the court that the reason for the motion was that the defendant 'feels one or more of his witnesses may now be unavailable to him'. The court inquired if the defendant had made any requests for a trial. Through an interpreter the defendant said that he had asked for a trial in a letter about two months earlier sent to 'the secretary of the Supreme Court'. The court commented that two months was a 'reasonable delay of time' to arrange a transfer from Atlanta to New York and asked if there was any proof that the defendant was prejudiced by the delay. The defendant's counsel explained that a male and a female had been indicted with the defendant; that while the male was available as a witness for the defendant, the female had not appeared in court and that there was a bench warrant out for her. The court, stating that the male was available as a witness and that the female had disappeared before the defendant had demanded a trial, denied the motion.

During this colloquy leading up to the decision, the prosecuting attorney was not asked for any explanation or excuse for the time interval, offered no proof and uttered no word.

Since the court determined that the two months following the demand was a reasonable time within which to have moved the defendant's trial and that there was no prejudice to the defendant because the female witness had disappeared prior to the demand, we conclude that the court was under the impression that a demand for a trial is a prerequisite to a motion to dismiss for failure to provide a speedy trial. Not only is a demand not a prerequisite but a delay of fifteen months in this type of case calls for a full scale inquiry in which the conduct on both sides should be weighed.

The necessity of a prior demand by the defendant, at the risk of waiving his right to a speedy trial, has recently been considered by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, where the court addressed itself directly to those states having a demand-waiver rule. Declaring that no defendant has a duty to bring himself to trial and that the prosecutor must satisfy the public's interest in speedy trials, the court rejected 'the rule that a defendant who fails to demand a speedy trial forever waives his right'. It adopted another rule, 'that the defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right' (P. 528, 92 S.Ct. p. 2191).

The court recognized, moreover, that New York is one of eight states that had rejected the demand-waiver rule and the rule it adopted is, in fact, ours. 'It is the state which initiates the action and it is the state which must see that the defendant is arraigned. It is likewise the state which has the duty of seeing that the defendant is speedily brought to trial. And from this it follows that the mere failure of the defendant to take affirmative action to prevent delay may not, without more, be construed or treated as a waiver' (People v. Prosser, 309 N.Y. 353, 358, 130 N.E.2d 891, 895).

It also follows that a fifteen month delay cannot be held reasonable only because the defendant's demand was two months old, and that he was not prejudiced because his witness was missing before the demand was made.

Where the length of the delay is presumptively prejudicial, it should serve to trigger an inquiry in which the conduct of both the prosecution and the defendant is to be weighed with respect to, among other factors, the length of the delay, the reason for it, the defendant's assertion of his right and the prejudice to him (Barker v. Wingo, Supra). 'The length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge' (407 U.S. pp. 530--531, 92 S.Ct. p. 2192). Bearing in mind that the defendant's incarceration provides the prosecution with neither an explanation nor an excuse (People v. Wallace, Supra), a fifteen months' delay for a narcotics selling and possession charge is presumptively prejudicial enough to warrant such an inquiry. (People v. Townsend, 38 A.D.2d 569, 328 N.Y.S.2d 333. See also People v. Masselli, 13 N.Y.2d 1, 240 N.Y.S.2d 976, 191 N.E.2d 457; People v. Wallace, Supra.)

A motion to dismiss an indictment under CPL 210.20 must be made upon proper papers and on notice (CPL 210.45). One made orally and without notice should not be granted (People v. Ryan, 42 A.D.2d 869, 347 N.Y.S.2d 216). Upon remand, the motion should be renewed on proper papers (People v. Cowan, 21 A.D.2d 687, 250 N.Y.S.2d 628).

The question of the reasonableness of the delay herein is remanded to the trial justice for hearing and determination, the appeal being held in abeyance in the interim.

All concur except LUPIANO, J., who concurs in a concurring opinion and KUPFERMAN, J., who dissents in a dissenting opinion.

LUPIANO, Justice (concurring).

I concur in the result reached on the basis that the record herein warrants a hearing on the reasonableness of the delay. The People delineate a factual basis justifying the delay in their brief, which factual basis is Dehors the record. Accordingly, justice and reason mandate that defendant-appellant be afforded a hearing on this issue.

KUPFERMAN, Justice (dissenting).

'No one questions that a defendant is entitled to a speedy trial (Code Crim.Pro., § 668 (now CPL § 30.20); Civil Rights Law, § 12; U.S.Const., 6th Amdt.), or that the burden of proceeding promptly rests on the State and not on the defendant (People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891).'

People v. Piscitello, 7 N.Y.2d 387, 388, 198 N.Y.S.2d 273, 274, 165 N.E.2d 849, 850.

There is no dispute about the continued validity of the foregoing statement. See also, People v. Wallace, 26 N.Y.2d 371, 310 N.Y.S.2d 484, 258 N.E.2d 904.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the ...