People v. Ross

CourtNew York Court of General Sessions
Writing for the CourtMITCHELL D. SCHWEITZER
Citation233 N.Y.S.2d 344
PartiesThe PEOPLE of the State of New York v. John ROSS et al., Defendants.
Decision Date14 March 1962

Page 344

233 N.Y.S.2d 344
The PEOPLE of the State of New York
John ROSS et al., Defendants.
Court of General Sessions, New York County.
March 14, 1962.

Page 345

Carson DeWitt Baker, (now deceased) New York City, for defendant.

Frank S. Hogan, Dist. Atty., by Irving Lang, Asst. Dist. Atty., for the People.


This is a motion, under section 669-a of the Code of Criminal Procedure, for an order dismissing an indictment on the ground that, without 'good cause in open court' having been shown, the district attorney failed to bring the defendant to trial within 180 days of his having served notice that he desired a 'final disposition of the indictment lodged against him.' It is undisputed that the defendant served notice as prescribed in the statute and that he was not brought to trial within the statutory period. The only issues presented are whether the defendant waived his right to a trial within the statutory period and whether, if he did not waive his right, the delay was for 'good cause.'

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The statute on which the defendant relies was enacted in 1957 and no case has yet been decided under it which is determinative of the issues raised here. The fact is, however, that although the exact form of relife provided in section 669-a is of recent date, the principle which underlies it--that of the right to a speedy trial--is as ancient as it is fundamental. [See, Orfield, Criminal Procedure from Arrest to Appeal (1947), p. 380.] Furthermore, the right to a speedy trial is embodied in constitution as well as other statutes, in this state and other jurisdictions, and there are numerous decisions which define its scope and limitations. (See, in this State, e.g., People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891, 57 A.L.R.2d 295; People v. White, 2 N.Y.2d 220, 159 N.Y.S.2d 168, 140 N.E.2d 258, appeal dismd. and cert. den. 353 U.S. 969, 77 S.Ct. 1061, 1 L.Ed.2d 1133; People v . Piscitello, 7 N.Y.2d 387, 198 N.Y.S.2d 273, 165 N.E.2d 849; People v. Wilson, 8 N.Y.2d 391, 208 N.Y.S.2d 963, 171 N.E.2d 310; People v. Godwin, 2 A.D.2d 846, 156 N.Y.S.2d 37, aff'd 2 N.Y.2d 891, 161 N.Y.S .2d 145, 141 N.E.2d 629; the decisions in other states are collected in 22A C.J.S. Criminal Law § 472, subd. b). It is to this body of law, therefore, to which I turn.

The statute which is most similar to the one before me is section 668 of the New York Code of Criminal Procedure. Like section 669-a, section 668 protects the right to a speedy trial by establishing a time within which a defendant under indictment must be brought to trial; the statute before me lays down a 180-day limit, while section 668 reads that the defendant must be brought to trial 'at the next term of the court in which the indictment is triable, after it is found.'

In addition to setting a limit to delay, each statute, in almost identical language, provides a condition under which delay will be justified. Thus, section 668 provides that the trial may be delayed beyond the statutory period if 'good cause' is shown, and section 669-a allows delay if 'good cause [is] shown in open court.' The only difference between the statutes, from the point of view of the issues before me, is that section 669-a provides a more specific time limit than does section 668. The time within which a defendant must be brought to trial, under section 669-a, is specified in days rather than terms of court, and the time runs from the date on which the defendant serves notice on the district attorney of his desire for a 'final disposition' of the indictment instead of from the term of court in which the indictment was handed down. Thus, as the Governor's message which recommended the legislation makes plain, section 669-a incorporates the same vital principle as section 668 but gives it more force by making its terms more precise. (See 1957 Legislative Annual pp. 498-499.)

Since the intent and purpose of the one statute are identical to that of the other, it must follow, as I have already suggested, that the authoritative precedents governing the one are applicable to the

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other. In People v. Prosser (309 N.Y. 353, 130 N.E.2d 891, 57 A.L.R.2d 295, supra), Judge Fuld, writing for a unanimous court, delivered a reasoned and comprehensive analysis of section 668, and that case has since been applied in a number of other decisions which illuminate the issues presented here. (See e.g., People v. White, 2 N.Y.2d 220, 159 N.Y.S .2d 168, 140 N.E.2d 258, supra; People v. Piscitello, 7 N.Y.2d 387, 198 N.Y.S.2d 273, 165 N.E.2d 849, supra; People v. Wilson, 8 N.Y.2d 391, 20, N.Y.S.2d 963, 171 N.E.2d 310, supra; People v. Godwin, 2 A.D.2d 846, 156 N.Y.S.2d 37, supra.) These cases make it abundantly clear that, as is the case of many other issues in the criminal law, 'justice, though due the accused, is due the accuser also' (Snyder v . Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674, per Cardozo, J.). In the context of this case, this means that, although the defendant has a right to a speedy trial, the People also have a right to try him, despite delay, if delay was for 'good cause' or if the defendant waived his right to a speedy trial.

Thus, in the Prosser case, 309 N.Y. 353, 130 N.E.2d 891, supra, the Court of Appeals reversed judgments of conviction and dismissed the indictment on the ground that 'Prosser was entitled to a speedy trial [but] * * * did not receive one' (309 N.Y., at p. 357, 130 N.E .2d at p. 894). The court, however, expressly noted the fact that dismissal of the indictment would not have been required had the district attorney shown 'good cause to the contrary' (at pp. 357, 361, 130 N.E.2d 891, 895). It also declared that 'a defendant may * * *...

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