People v. Rodriguez

Citation429 N.Y.S.2d 631,407 N.E.2d 475,50 N.Y.2d 553
Parties, 407 N.E.2d 475 The PEOPLE of the State of New York, Respondent, v. Walter RODRIGUEZ, Appellant.
Decision Date12 June 1980
CourtNew York Court of Appeals
Nancy S. Hobbs and William E. Hellerstein, New York City, for appellant
OPINION OF THE COURT

FUCHSBERG, Judge.

On this appeal, defendant relies in the main on his contention that he was deprived of a speedy trial. For the reasons which follow, we conclude that, under the circumstances, that claim must be deemed abandoned and the order of the Appellate Division which affirmed the conviction must be upheld. 1

In the summer of 1972, defendant, Walter Rodriguez, was arrested and charged with various counts of burglary, robbery, grand larceny, assault and possession of a weapon. The case remained untried for more than two years, delays having been occasioned at times by defense requests for postponements and at others under circumstances chargeable to the People.

Crucial here are the litigation events of early fall, 1974. On September 23, defendant moved to dismiss the indictment on the ground that he had been denied his constitutional right to a speedy trial (U.S.Const., 6th Amdt.). Ten days later, the defense was granted a six-week adjournment of the trial in order to alleviate conflicts in counsel's schedule. On October 8, the trial court, construing the motion as one within the compass of both CPL 30.30 and CPL 30.20, ordered a hearing on the extent and reasonableness of the delay.

For reasons undisclosed by the record, no speedy trial hearing was held. When the prearranged trial date, November 18, arrived, defendant neither asked for an opportunity to have such a hearing slated nor reiterated his contention that the delay entitled him to a dismissal. And he in no way indicated that the passage of 40 days since the hearing had been ordered was other than volitional on his part. Instead, the defense indicated without qualification that it was ready to proceed to trial and, in its sole fleeting allusion to the speedy trial problem, informed the court that the case had been advanced beyond several older ones because the order emanating from the speedy trial motion commanded the People to "try it or get a dismissal".

No more effective an assertion of the right to a resolution of the speedy trial issue took place the next day, when a Wade identification hearing was scheduled. Indeed, when the court referred to an understanding that, as soon as the reliability of certain identification testimony was resolved, the case would be tried, counsel encouraged that proposed course by agreeing that "(t) here is no reason other than getting (a transcript of the hearing) not to proceed."

And proceed the trial did, again without mention of the speedy trial issue either before the jury rendered its guilty verdict or by postconviction motion. In fact, it was never heard of again until appeal, whereupon the Appellate Division directed that a fact-finding hearing be held on defendant's claim. When Trial Term then found that less than six months of the delay was attributable to the People and that, therefore, defendant was not entitled to a dismissal, the Appellate Division affirmed the judgment of conviction. We agree that the conviction must be upheld, but, because of his surrender of his claim of excessive delay, find no occasion to address the merits of defendant's speedy trial position.

Turning now to the constitutional claim, unlike claims "so fundamentally basic" to our system of jurisprudence as to be exempt from the general doctrine of waiver, we hold that the constitutional right to a speedy trial is one that may be surrendered (compare, e. g., Barker v. Wingo, 407 U.S. 514, 525, 92 S.Ct. 2182, 2189, 33 L.Ed.2d 101 and People v. White, 32 N.Y.2d 393, 345 N.Y.S.2d 513, 298 N.E.2d 659 (speedy trial constitutionally considered), with People v. Michael, 48 N.Y.2d 1, 6, 420 N.Y.S.2d 371, 394 N.E.2d 1134 (double jeopardy), and Cancemi v. People, 18 N.Y. 128 (trial by jury of 12)). However, especially in light of the protected position occupied by even a waivable constitutional right in our hierarchy of values, ordinarily only "an intentional relinquishment or abandonment" will suffice (Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461). In such a case, a record that is simply silent on the question will not overcome the "presumption against waiver", however denominated (Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70;...

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  • Barill v. Artus
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • 21 Diciembre 2020
    ......5-53). On August 8, 2014, Petitioner's conviction was unanimously affirmed by the Appellate Division, Fourth Department. People v. Barill , 120 A.D.3d 951, 991 N.Y.S.2d 214 (4th Dep't 2014). The New York Court of Appeals denied leave to appeal on November 12, 2014. People v. ...Rodriguez , 50 N.Y.2d 553, 557 [429 N.Y.S.2d 631, 407 N.E.2d 475] [1980] ). People v. Barill , 120 A.D.3d at 953, 991 N.Y.S.2d 214. The Court has reviewed ......
  • People v. Bray
    • United States
    • New York Supreme Court Appellate Division
    • 30 Octubre 1989
    ...constitutional speedy trial claims (People v. Blakley, 34 N.Y.2d 311, 357 N.Y.S.2d 459, 313 N.E.2d 763; cf., People v. Rodriguez, 50 N.Y.2d 553, 429 N.Y.S.2d 631, 407 N.E.2d 475); constitutional double jeopardy issues (Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195); or a pros......
  • People v. Harris
    • United States
    • New York Court of Appeals
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    ...... (People v. Nixon, supra, 21 N.Y.2d at p. 355, 287 N.Y.S.2d 659, 234 N.E.2d 687.).         On the other hand, a record that is silent will not overcome the presumption against waiver by a defendant of constitutionally guaranteed protections. (People v. Rodriguez, 50 N.Y.2d 553, 557, 429 N.Y.S.2d 631, 407 N.E.2d 475.) To be sure, the record must show "an intentional relinquishment or abandonment of a known right or privilege." (Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461; Barker v. Wingo, 407 U.S. 514, 526, 92 S.Ct. 2182, ......
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    ...rights will not overcome the presumption against the waiver of these rights by that defendant. See, People v. Rodriguez, 50 N.Y.2d 553, 557, 429 N.Y.S.2d 631, 407 N.E.2d 475 (1980). See, also, People v. Vickers, 84 A.D.3d 627, 628, 923 N.Y.S.2d 497 (1st Dept, 2011) (guilty plea vacated when......
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