People v. Segura

• Citation: 12 Misc.2d 279,177 N.Y.S.2d 218
• Parties: The PEOPLE of the State of New York v. Curtis SEGURA.
• Decision Date: 27 June 1958
• Court: New York County Court

Page 218

177 N.Y.S.2d 218

12 Misc.2d 279

The PEOPLE of the State of New York v. Curtis SEGURA.

Queens County Court.

June 27, 1958.

John C. Gotimer, Cambria Heights, for defendant, for the motion.

Frank D. O'Connor, Dist. Atty., Long Island City (Howard D. Stave, Asst. Dist. Atty., Flushing, of counsel), opposed.

PETER T. FARRELL, Judge.

Defendant, under an indictment for grand larceny 1st degree (automobile) has moved for its dismissal under the provisions of Sections 8 and 668 of the Code of Criminal Procedure. The motion is granted. There would be no occasion for further comment were it not for the fact that this appears to be a case of novel impression, involving a determination of the impact of the provisions of Section 669-a of the Code of Criminal Procedure upon what has heretofore been the right of a defendant to move for a dismissal of an indictment under Section 668. The facts are as follows:

On January 5, 1955, when the indictment was handed up and filed, defendant was confined at Elmira Reformatory serving a term of imprisonment to which he had been sentenced December 3, 1954--for attempted robbery 1st degree--by another judge of this court. After its filing the District Attorney made the existence of the indictment known to the Warden of Elmira Reformatory but did not move it for trial. On September 1, 1957, Section 669-a of the Code of Criminal Procedure went into effect and on December 23, 1957 the District Attorney received a certificate of defendant's inmate status and a notice and request for a final disposition of the indictment, pursuant to the provisions of the new statute. On February 27, 1958 the District Attorney applied for and obtained a writ in obedience to which defendant was brought before the court March 12, 1958 for arraignment. At his request, counsel (present in court) was assigned, the defendant pleaded 'not guilty' and was given until March 26, 1958 to move against the indictment. The present motion was made within the period allowed. In furtherance of its address to the issue of law, the court directed all subsequent continuances, in open court, in the presence of defendant and his counsel and with their consent, given without prejudice to such rights as defendant had at the time of his motion to dismiss. And, but for the possible consequences of his service of the notice and request, defendant's right to a dismissal is clear. People v. Chirieleison, 3 N.Y.2d 170, 173-174, 164 N.Y.S.2d 726, 727-728; and compare, People v. Wilson, 5 A.D.2d 690, 169 N.Y.S.2d 285, with People v. Sadler, 4 A.D.2d 963, 168 N.Y.S.2d 287.

There is not so much as a suggestion that defendant procured, caused, consented to, acquiesced in or (apart from his notice and request) condoned the past delay. Code Cr.Proc. § 668; People v. White, 2 N.Y.2d 220, 223-225, 159 N.Y.S.2d 168, 171-173; People v. Godwin, 2 A.D.2d 846, 156 N.Y.S.2d 37, affirmed 2 N.Y.2d 891, 161 N.Y.S.2d 145; People v. Prosser, 309 N.Y. 353, 359-360, 130 N.E.2d 891, 895-896, 57 A.L.R.2d 295. Nor has the District Attorney made any attempt to offer 'good cause' for its occurrence. Defendant's application for his discharge is timely, even by the view that the right to dismissal is waived if not asserted until the trial is 'at hand'. State v. Nilnch, 131 Wash. 344, 345-346, 230 P. 129. A dismissal is, therefore, required unless, as the District Attorney contends, defendant waived his right under Section 668 by earlier resorting to the procedure established by Section 669-a. That is the sole ground of opposition to defendant's motion.

Otherwise stated, the District Attorney's position is that defendant's resort to the new procedure constitutes an expression of desire to stand trial and an election to do so, and that once having made his election the prisoner cannot reverse his field and request a dismissal under Section 668. Logical support is lent to that position by the concept of waiver of delay--and of the right to a discharge on that account--by a defendant's consent to or acquiescence in still further delay (People v. White, supra; People v. Prosser, supra; People v. Sadler, supra; 14 Am.Jur. Sec. 138, p. 863; 22 C.J.S. Criminal Law § 469, p. 719) or by his withdrawal of a formal demand for his discharge for past delay, his announcement of readiness for trial and his application to have the case set for trial (State v. Moss, 92 Or. 449, 451, 461, 181 P. 347). The principle would be brought to bear in this case by regarding defendant's request under Section 669-a as a consent to a further delay of as much as 180 days. The consideration for his election and consent might be found in an assurance of either a trial without any further undue delay or a dismissal precluding renewal of prosecution for the same offense (Code Cr.Proc. § 673 as amended by L.1957 ch. 440). Granting the apparent forcefulness of its appeal to logic, nevertheless I decline to accept the District Attorney's view, for to do so is to evaluate Section 669-a as a booby-trap instead of a new weapon in a defendant's arsenal. I do not believe that the Legislature intended--or accomplished--any such result.

To begin with, the language of Section 669-a, taken literally, does not put a defendant in a posture of asserting a 'desire to be brought to trial upon the charge' (see, e. g., West's Ann.California Penal Code, Part 2, Title 10, § 1381) or of requesting the District Attorney to 'bring him to trial on the charge' (see, e. g., Oregon Rev.Stat., Title 14, ch. 134, sec. 134.510). By his use of the Section 669-a procedure he is committed to a 'request for a final disposition'. ¹ The Legislature's discrimination in the choice of these words becomes pointed in the light of the fact that its Joint Legislative Committee was familiar with the California and Oregon statutes which, as just noted, do, literally, put the convict in the position of requesting a 'trial' on the outstanding charge. The comparative study thus reflected suggests that the wording actually used was deliberately selected to avoid putting the prisoner in the position of requesting a trial. That reduces the scope of decision to a determination whether earlier use of the new remedy is, per se an abandonment by election or otherwise, of the right to request a dismissal under Section 668 because of previously occurring delay. I hold that it is not. I reach that conclusion because the statute does not expressly so provide and because what I perceive to be the intent and purpose of and the policy considerations underlying this new legislation oppose its interpretation in such a way as to make it a trap for the unwary inmate.

Acclaimed as a new and additional remedy in the hands of a defendant imprisoned on another charge (Messages of the Governor, McKinney's Session Laws, 1957, 1855-1856) the new procedure is, of course, particularly concerned with such persons but the statutes which establish it do not assume to cut off the convict's Section 668 remedy if his case is otherwise under its coverage. Cf. People v. Goldewski, (Taranski), 22 Cal.2d 677, 683-684, 140 P.2d 381. The stated and only apparent purpose of Section 669-a and its companion-statute, Section 669-b, with their one-way flow of benefits--to the prisoner--repel the notion that the Legislature might have intended to give with one hand and take away, indirectly, with the other.

Unmistakably evident in this new procedural plan is the accent given to the importance of the right to a speedy trial--'a cardinal principle of our system of criminal justice' (1957 Annual Report of N. Y. Joint Legis. Committee on Interstate Cooperation, p. 177, McKinney, supra, 2093).

Specifically, it 'permits' prosecutors to clear up outstanding charges while the evidence is fresh and, at the same time, gives the defendant the right to 'precipitate' a final disposition and thus resolve his prison status. Additionally, it makes for a fairer trial and a more adequate presentation of the evidence by both sides. Id. The procedure by which this is achieved is such that the Commissioner of Correction is required to promptly inform the inmate, in writing, of the source and content of any indictment, etc., known to the Commissioner and of the prisoner's 'right to make a request for a final disposition thereof'. Code Cr.Proc. § 669-a, subd. 1(c). Upon his part, the convict 'shall' give or send to the Commissioner and the latter is required to forward along with his own certificate, (by registered or certified mail) to the appropriate District Attorney and court ( § 669-a, subd. 1[b]) of the county in which the charge is pending, written notice of the inmate's place of imprisonment and his request for a final disposition. The accused must be brought to trial thereon within 180 days after delivery of the notice, etc. (unless the court grant a necessary or reasonable continuance for good cause shown in open court) ( § 669-a, subd. 1[a]). In the event that he is not, no court of the state any longer has jurisdiction thereof, the indictment, information or complaint is to be of no further force or effect and the court must enter an order dismissing it with prejudice (subd. 2). The order bars another prosecution for the same offense, even if a felony. Code Cr.Proc. § 673 as amended by L.1957 ch. 440. Section 669-b establishes an interstate procedure along the same lines adapted, of course, to the special needs of such situations.

Before Section 669-b took effect, trial delay occasioned by the defendant's imprisonment in another jurisdiction did not justify his demand for a discharge (People v. Brandfon, 4 A.D.2d 679, 163 N.Y.S.2d 1007). As the Colorado court reasoned, one sovereign cannot be compelled to yield up its prisoner for trial by another. It may do so voluntarily, as a matter of comity, but in any event the local authority is under no obligation to apply to the foreign sovereign for the attainment of that end. In re Schechtel, 103 Colo. 77, 83-85, 82 P.2d 762, ...