People v. Santos

• Decision Date: 27 March 1987
• Parties: The PEOPLE of the State of New York v. Frank SANTOS, Defendant.
• Court: New York Supreme Court

Page 854

514 N.Y.S.2d 854

135 Misc.2d 51

The PEOPLE of the State of New York v. Frank SANTOS, Defendant.

Supreme Court, New York County.

March 27, 1987.

Patrick M. Wall (Oren Root, Jr., New York City, of counsel), for defendant.

Robert M. Morgenthau, Dist. Atty. (Jeffrey Scott Sarokin, New York City, of counsel), for People.

DECISION

EVE PREMINGER, Justice:

A defendant who faces multiple indictments or who is charged with one or more codefendants often encounters delay in proceeding to trial. When indictments face the defendant in different jurisdictions the problems are compounded. The instant case explores some ramifications of the interplay between the speedy trial statute, the Uniform Criminal Extradition Act (CPL Article 570), and the Interstate Agreement on Detainers (CPL Article 580) in the context of indictments charging two individuals with narcotic sales ¹.

On November 28, 1978, defendant sold 46 grams of heroin to an undercover police officer for $120; and on December 6, 1978, acting with James Manieri, he sold some heroin to the same officer for $180. Eight days later defendant was charged in two separate indictments. The first, 4940/78, dealing with the events of December 6, charged him with criminal sale of a controlled substance in the second degree; Manieri was named as a codefendant on this indictment. The second, 4941/78, charged him along with the November 28th possession and sale of heroin. By December 20th, three weeks after the initial sale, defendant was arraigned on the indictments.

The speed with which defendant's case had so far proceeded was, unfortunately, little indication of the tempo of the succeeding events.

The next three months activity consisted of a few desultory and unremarkable adjournments which, the parties agree, are chargeable to the People ².

The beginning of the first period in contention began on March 21, when Manieri posted bail. The following day court and counsel were informed by the court clerk that Manieri "had been taken out of Rikers Island and returned to the State of New Jersey under an extradition warrant and he waived [extradition]". Manieri was to remain in New Jersey for almost eight months, until November 15, 1979. During this period little progress was made in bringing defendant to trial on either of his two indictments. On April 11th defendant's attorney informed the court that he had been told by the People that they would oppose severing his client's case from that of his codefendant. The People confirmed their position on May 17th, stating that if the defendant wanted to resolve indictment 4940/78 in the absence of codefendant he could do so by entering a plea of guilty, and in no other manner. As to indictment 4941/78, nothing was said.

Defendant's cases remained in a state of suspended animation through the summer and fall. Progress seemed to be in the offing when Manieri was returned to this jurisdiction on November 15, but this hope proved illusory.

In defiance of the laws of probability, on that very day defendant waived extradition to New Jersey to face charges on an unrelated crime.

On Dec. 11 the State of New York filed a detainer for defendant's return with the State of New Jersey, in anticipation of the time when defendant would demand resolution of his New York indictment, CPL 580.20, Article III(a). Having been sentenced on his New Jersey case on Jan. 12, 1980, defendant made such a demand on March 10, by filing a pro se notice and request for final disposition as mandated by the statute.

The People received this request on March 12 and immediately submitted an order to the court to have the defendant returned. Administrative procedures delayed defendant's return until May 16, a Friday, and defendant's attorney was informed that his client was back in New York on the following Monday. This brings to a close the major period (March 21, 1979--May 19, 1980) in contention on this motion.

It is the People's view that this entire period is excludable under subparagraphs 4(a) through (e) of CPL 30.30.

The People first contend that the entire period of Manieri's absence (March 21 to Nov. 15) is excludable pursuant to CPL 30.30(4)(d) which excuses reasonable delays caused by a codefendant's unavailability.

Defendant responds that while in the ordinary case the period during which a codefendant is standing trial on another case might not be chargeable to the People under subparagraph 4(d), in the instant case the People "sent" the codefendant out of the state in disregard of defendant's speedy trial rights. Having thus prejudiced defendant, they then compounded their malfeasance by failing to diligently secure Manieri's return for almost five months.

Many of the same issues pertain to Santos' absence. The defendant would impose upon the People a duty to oppose extradition to New Jersey in an attempt to keep the defendant in this jurisdiction so as to assure him a speedy trial. Neglecting this duty, i.e., passively permitting extradition through inaction, is viewed under this theory as the functional equivalent of sending him away. Delays in obtaining defendant's speedy return are characterized by defendant as failing to exercise due diligence.

The People see defendant's absence differently. If defendant was in New Jersey, it was of his own volition; they were under no duty to keep him here nor could they have done so had it been their desire. They claim that defendant exercised his option of resolving his New Jersey charges before those facing him in New York and thus consented to the delay (CPL 30.30(4)(b)), or that the period (Nov. 15, 1979--May 16, 1980) was one in which 'other proceedings concerning the defendant' (4(a)) were taking place, or a period of delay resulting from the absence or unavailability of the defendant', (4(e)).

Analysis of defendant's argument that the People procured the absence of Manieri and Santos to New Jersey begins with an examination of CPL Article 570 which, unlike CPL Article 580 is applicable when extradition is sought against individuals who are not incarcerated as sentenced prisoners, Matter of Cresong v. Nevil, 51 A.D.2d 1096, 381 N.Y.S.2d 355. Both Santos and Manieri were facing charges in New York when demanded by New Jersey. Section 570.44 provides that:

If a criminal prosecution has been instituted against such person under the laws of this state and is still pending, the governor, in his discretion, may either surrender him on demand of the executive authority of another state or hold him until he has been tried and discharged or convicted and punished in this state.

This section, however, does not apply to situations in which the defendant waives extradition ³. An individual waiving extradition pursuant to CPL 570.50 "waive[s] the issuance and service of the warrant ... and all other procedure incidental to extradition proceedings ..." While it is true that the section further provides that "nothing in this section shall be deemed ... to limit the powers, rights or duties of the officers ... of this state". I do not take this sentence to mean that the governor or his agents may prevent, under the aegis of the Article, a defendant who wishes to waive extradition from doing so. The first portion of section 570.50 can only be read to mean that by waiving extradition, an individual bypasses the procedures and protections which are otherwise afforded him. This reading is consonant with the fact that the governor may exercise his discretion to hold a defendant only after he has issued a warrant, People ex rel. Linaris v. Weizenecker, 89 Misc.2d 814, 392 N.Y.S.2d 813. Thus, the person who waives issuance and service of the warrant also draws reign to any possible Article 570 intercession from the governor. (For an examination of defendant's rights, in the inverse situation, see People ex rel. Seiler v. Warden of the City Prison, 199 Misc. 570, 102 N.Y.S.2d 969).

For the reason that Article 570 fails to give the state the power to hinder a defendant who wishes to waive extradition from doing so, the state cannot be said to have effected the transfer of Manieri or Santos, who were in New Jersey entirely of their own volition. I am in agreement with the People's position that a defendant who waives extradition expresses a preference to resolve the charges he faces in the extraditing jurisdiction first and thus consents to the adjournment which is reasonably necessary to effectuate his choice. For an incarcerated defendant, this means that for the purposes of CPL 30.30 the delay engendered in defendant's New York case because of proceedings (up to sentence) in a foreign jurisdiction is not chargeable to the People, and may be viewed as an excludable period under subparagraphs 4(a) or 4(b) of that section. The period Nov. 15, 1979, when defendant waived extradition, to Jan. 4, 1980, when he was sentenced is, for this reason, not chargeable to the People.

This rationale is not dispositive of the period in which Manieri's New Jersey case was proceeding; Manieri may have consented to the delay in his own case by this action, but he could hardly have bound a codefendant who was never a party to his (Manieri's) election.

This result has its greatest impact on indictment 4941/78.

As defendant never consented to staying the progress of his case until Nov. 15, and there was no excuse for the failure of the People to attend to defendant's indictment, the indictment must be dismissed.

I find that, contrary to the People's position, plea negotiations played no part in the long delay in bringing defendant to trial (see People v. Panarella, 50 A.D.2d 304, 377 N.Y.S.2d 709, People v. Rivera, 72 A.D.2d 922, 422 N.Y.S.2d 211). With minor exception noted below, the sole cause of the delay to Nov. 15 was the refusal of the People to proceed with either of defendant's cases until Manieri's return, a position which is explained but not justified by the People's desire to try the cases in an order th...