People v. Ross

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

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

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

MITCHELL D. SCHWEITZER, Judge.

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.' 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 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 * * * consent to delay * * * and thereby waive his right,' and, added the court, such waiver is not only 'spelled out where both prosecution and defense agree upon or stipulate for a postponement, but it may be implied, for example, from the fact that the defendant, although present in court, interposes no objection to a postponement' (at pp. 359-360, 130 N.E.2d, at p. 896).

The same view of waiver was also announced in the White case, 2 N .Y.2d 220, 159 N.Y.S.2d 168, 140 N.E.2d 258, where the court refused to dismiss an indictment, although there had been delay. 'It is well settled,' declared the unanimous court, 'that the right to a speedy trial may be waived. * * * This waiver may occur * * * through acquiescence', such as 'where defendant consents to the postponement of a trial' (2 N.Y.2d, at pp. 223-224, 159 N.Y.S.2d, at p. 172, 140 N.E.2d at p. 260). Similarly, in the Piscitello case, 7 N.Y.2d 387, 198 N.Y.S.2d 273, 165 N.E.2d 849, the court laid down the rule that, the right to a speedy trial 'being personal, it may be waived by conduct on the part of the defendant indicating that he is not intent on a speedy trial, for instance, requesting a postponement or adjournment * * * or acquiescence in a delay sought by the prosecution' (7 N.Y.2d, at p. 388, 198 N.Y.S.2d, at p. 274, 165 N.E.2d, at p. 850; see, also People v. Perry, 196 Misc. 922, 96 N.Y.S.2d 517; People v. Cronin, 9 Misc.2d 173, 169 N.Y.S.2d 831). And the same rule has been applied in other jurisdictions. (See, e.g., Burnett v. State, 76 Ark. 295, 88 S.W . 956; People v. Benc, 130 Cal. 159, 62 P. 404; Healy v. People, 177 Ill. 306, 52 N.E. 426; McGuire v. Wallace, 109 Ind. 284, 10 N.E. 111; State v. Billings, 140 Mo. 193, 41 S.W. 778; State v. Lamphere, 20 S.D. 98, 104 N.W. 1038).

I must conclude, therefore, as the United States Supreme Court did in Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950, that 'the right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances.' Or, in the words of the Court of Appeals, 'The inquiry * * * is factual and * * * depends 'upon the circumstances of each particular case'' (People v. Prosser, 309 N.Y. 353, 360, 130 N.E.2d 891, 896, supra).

Turning to the circumstances of this case, I am of the opinion that the defendant waived his right to a speedy trial by taking a position inconsistent with his present assertion of that right. It is also my view that, irrespective of waiver or consent, the delay here was justified by reason of it being 'for good cause [shown] in open court.'

The indictment here at issue was brought against this defendant and seven others for the crimes of conspiracy, of selling and of possessing narcotics. After arraignment on this indictment, the defendant Ross--the movant herein--was sentenced to prison on an independent conviction and, while in prison, on April 6, 1960, he caused to have notice served on the district attorney, as required by section 669-a. Thus, if no waiver occurred or if 'good cause' for delay were not shown, he would have had to have been tried by October 3, 1960.

On September 21, 1960, in response to the defendant's service of notice, the district attorney had the defendant brought into court from prison and he also had all of his co-conspirators ready in court with their counsel. The only one not present was the defendant's counsel. In open court, the district attorney indicated that the movant-defendant Ross was demanding trial and that he, the district attorney, was ready to try him. At the same time, he brought to the attention of court the fact that some of the defendants had made motions to inspect the grand jury minutes which motions were then before another judge of the court. Since all counsel agreed that the disposition of the motions to inspect would materially affect all defendants, the court marked the case ready but passed to September 26th. It was evidently hoped that the motions would be decided by that time and that Ross' counsel would be present. The defendant, present in court, voiced no objection to this postponement.

On September 26th, the case was again on the trial calendar, but this time the defendant Ross' attorney was present. Noting again that the motions to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT