People v. Smith

• Decision Date: 09 April 1980
• Citation: 426 N.Y.S.2d 952,103 Misc.2d 640
• Parties: The PEOPLE of the State of New York, v. Nasbert SMITH, Defendant.
• Court: New York City Court

Page 952

426 N.Y.S.2d 952

103 Misc.2d 640

The PEOPLE of the State of New York, v. Nasbert SMITH, Defendant.

Criminal Court of the City of New York, Kings County.

April 9, 1980.

Eugene Gold, Dist. Atty. by Asst. Dist. Atty. Steven Adam Stone, for the People

Raphael F. Scotto, Brooklyn, for defendant.

MARTIN SCHNEIER, Judge.

This is a motion by the defendant for an order dismissing the complaint on the ground that he has been denied a speedy trial pursuant to CPL section 30.30 and the United States Constitution.

The defendant was arrested on March 22, 1979. He was charged with grand larceny of a vehicle, criminal possession of stolen property and unauthorized use of a vehicle.

A chronology of the case is as follows: The defendant was arraigned on a felony complaint in Criminal Court on March 23, 1979 and bail was set at $250.00. The case was adjourned to April 11, 1979. On March 25, 1979 the defendant deposited with the Department of Correction the sum of $250.00 and he was released from custody. On April 4, 1979 the defendant was arrested and then arraigned on April 15, 1979 on charges arising out of a wholly unrelated incident, and as he could not post bail, he was incarcerated. The defendant did not appear in this court on April 11, 1979, as he was still incarcerated in connection with the April 4th arrest, and a bench warrant was ordered by the Court. On May 22, 1979 the defendant entered a plea of guilty to the charges stemming from his April 4th arrest, was sentenced to time served and was released. On June 5, 1979 a warrant squad officer searched for the defendant in and around the home address given by him at the time of his arrest and followed a lead to another address in an unsuccessful search for the defendant. On November 15, 1979 the defendant was arrested on this court's warrant and was brought before the court. The warrant was vacated, the defendant was paroled and this case was adjourned to November 30, 1979. On November 30, 1979 the felony complaint was reduced to a misdemeanor complaint and this case was adjourned at the request of the People to December 18, 1979. On December 18, 1979 this case was adjourned at the request of the defendant to January 9, 1980. On January 9, 1980 the defendant made the instant motion.

THE LAW

CPL section 30.30 requires a motion to dismiss be granted (under CPL section 170.30) where the people are not ready for trial within six months of the commencement of the criminal action where the defendant is accused of a felony and ninety days of commencement where the defendant is accused of a misdemeanor, but if the defendant is initially accused of a felony which is later reduced to a misdemeanor, the total time from the commencement of the felony action to the trial on the misdemeanor may not exceed six months. Delays chargeable to the defendant are excluded from the time of computation.

A criminal action commences with the filing of the accusatory instrument, and in this case it is the felony complaint (CPL section 1.20, CPL section 100.05). Therefore, the time period with which we are concerned in is the time from the filing of the felony complaint on March 23, 1979 to the date of the instant motion on January 9, 1980. This constitutes a period of nine months and seventeen days. However, a dismissal is not automatic because the delay exceeds six months.

Even if we assume that all the court adjournments and the period of defendant's incarceration is time charged against the people, the time period is less than six months. This is because the time period from the date the warrant was outstanding and the defendant was not incarcerated on May 22, 1979 to the date of the defendant's arrest under the warrant on November 15, 1979 is a period of five months and twenty-four days while the total delay here is nine months and seventeen days. Therefore, the determinative question here is whether this time period of five months and twenty-four days is chargeable to the defendant and thus, excluded from the time computation.

CPL section 30.30 excludes delay resulting from the defendant's absence where his location cannot be determined by due diligence. (People v. Manley, 63 A.D.2d 988, 406 N.Y.S.2d 108). The visit by a warrant officer to defendant's place of residence as well as to another location demonstrates due diligence by the People. Therefore, this time period is chargeable to the defendant and excluded from the time computation.

Dismissal for lack of a speedy trial under the United States Constitution has long been recognized as generally less stringent than the New York State legislative limitations. (People ex rel. Franklin v. Warden, 31 N.Y.2d 498, 341 N.Y.S.2d 604, 294 N.E.2d 199); (People v. Ganci, 27 N.Y.2d 418, 318 N.Y.S.2d 484, 267 N.E.2d 263, cert. den. 402 U.S. 924, 91 S.Ct. 1398, 28 L.Ed.2d 663). In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the United States Supreme Court sets forth the four factors to be considered in determining whether the defendant has been deprived of his right to a speedy trial: (1) length of delay; (2) reason for delay; (3) claim of right; and (4) prejudice to the defendant. Here there is a relatively short delay, no claimed prejudice to the defendant and the other factors are not shown to be applicable herein.

Accordingly, the defendant's motion is denied in all respects.

The court, sua sponte, upon its own motion, examined the court papers and found that the complaint...