People v. Schwartz
| Decision Date | 12 November 1958 |
| Citation | 6 A.D.2d 459,179 N.Y.S.2d 372 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Gerhardt Julius SCHWARTZ and Raymond W. Fisher, Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Charles J. Hart, Buffalo, for defendants-appellants.
John F. Dwyer, Dist. Atty. of Erie County, Buffalo, for respondent (George R. Blair, Asst. Dist. Atty., Buffalo, of counsel).
Before McCURN, P. J., and WILLIAMS, BASTOW, GOLDMAN and HALPERN, JJ.
The defendants appeal from a judgment of the County Court of Erie County convicting them of the crime of robbery in the third degree, entered on their plea of guilty to that crime as a reduced charge under an indictment which charged the defendants and one Daniel White with having committed robbery in the first degree. The indictment was returned on January 29, 1954. At that time, the defendants were being held in the Tioga County Jail on charges of crimes alleged to have been committed in that county. On February 9, 1954, the defendants pleaded guilty to the charges in Tioga County and were sentenced to Attica State Prison on February 11, 1954. Thereafter, on September 14, 1954, the defendants pleaded guilty to a charge of robbery in the first degree alleged to have been committed in Madison County. On December 6, 1954, they were sentenced to Attica State Prison on that conviction. Upon appeal from the Madison County convictions to the Appellate Division of the Third Department, the defendants were remanded to Madison County for resentence and were accordingly resentenced on June 13, 1956, 151 N.Y.S.2d 973, the sentences to run concurrently with the Tioga County sentences. In the meantime, Daniel White, who had been jointly indicted with the defendants, had been tried on the Tioga County and Madison County charges and had been acquitted. The defendants had testified as witnesses upon each of White's trials. Thereafter, White was brought to Erie County and tried on the Erie County indictment. White was convicted on December 8, 1954, and was sentenced on February 18, 1955.
On July 31, 1957, the district attorney of Erie County obtained an order directing the return of the defendants from Attica State Prison for arraignment and trial upon the Erie County indictment. The defendants were arraigned on August 12, 1957. Shortly thereafter, on August 28, 1957, they moved to dismiss the indictment under section 668 of the Code of Criminal Procedure upon the ground that they had been denied their right to a speedy trial. It appears from the statement of the assistant district attorney at the hearing before the county judge that the defendant Schwartz had written to the district attorney on May 1, 1956, requesting 'that the warrants outstanding for them their be dropped or that some other proceeding be taken relative to them'. In this letter, Schwartz pointed out that the defendants were subject to certain restrictions and were denied the opportunity to apply for certain jobs at the prison because of the fact that the indictments were outstanding and requested that 'something be done about it'. The district attorney indicated in reply that he could not do anything about it 'at that time'. Later, in July, 1957, the defendant Schwartz wrote to the district attorney again, requesting that something be done to dispose of the indictment. In response thereto, the district attorney procured the order referred to above and brought the defendants back from Attica for trial.
After the denial of their motion to dismiss the indictment, the defendants pleaded guilty to the reduced charge of robbery in the third degree. The defendants were sentenced to serve terms of them five to ten years, to commence upon the expiration of their prior sentence.
Upon this appeal from the judgment of conviction, the defendants bring up for review the intermediate order denying their motion to dismiss. This they have the right to do; their plea of guilty did not waive their motion for dismissal (People v. Chirieleison, 3 N.Y.2d 170, 164 N.Y.S.2d 726).
That the district attorney had been guilty of undue delay in bringing the case to trial cannot be questioned upon this record. More than 3 1/2 years had elapsed from the time of the indictment. The district attorney could have obtained as order to bring the defendants to Erie County from the county jail or State prison at any time for arraignment and trial (§ 298-b, Code of Criminal Procedure).
Under the rule laid down in People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891, 57 A.L.R.2d 295, the defendants were entitled to a dismissal of the...
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