People v. Steele

• Decision Date: 11 April 1995
• Citation: 626 N.Y.S.2d 953,165 Misc.2d 283
• Parties: The PEOPLE of the State of New York, Plaintiff, v. William STEELE, Defendant.
• Court: New York Supreme Court

Page 953

626 N.Y.S.2d 953

165 Misc.2d 283

The PEOPLE of the State of New York, Plaintiff, v. William STEELE, Defendant.

Supreme Court, Bronx County Part 48.

April 11, 1995.

Brown, Berne & Serra by Ira Brown, Bronx, for defendant, William Steele.

Robert T. Johnson, Dist. Atty. of Bronx County by Daniel McCarthy, Asst. Dist. Atty., for the People.

MARTIN MARCUS, Justice.

On January 6, 1993, the defendant was indicted by the Grand Jury of Bronx County for crimes arising from three different criminal incidents. In connection with an incident alleged to have occurred on September 29, 1992, the defendant was charged with two counts of Murder in the Second Degree and one count of Burglary in the First Degree. In connection with each of the two others, which were alleged to have occurred on August 29, 1992, and October 14, 1992, the defendant was charged with Burglary in the First Degree and related crimes. In his initial omnibus motion, the defendant sought severance of some counts of the indictment from others, without indicating which counts he was requesting be separately tried. In a decision dated September 20, 1993, I initially found the joinder proper under both CPL § 200.20(2)(b) and § 200.20(2)(c), and denied the defendant's severance motion.

Thereafter, the defendant, represented by an attorney other than the one who filed the omnibus motions, sought reargument of the severance motion. In his new motion, he specified that counts one through three, which concerned the September 29, 1992, incident, should be tried separately from the charges relating to the incidents of August 29 and October 14, 1992. I granted the defendant's motion for reargument, and on October 17, 1994, an order was entered in which I granted the defendant's severance application. On January 23, 1995, trial of the first three counts of the indictment began, and February 7, 1994, the jury returned its verdict, convicting the defendant of one count of Murder in the Second Degree and one count of Burglary in the First Degree.

On January 6, 1995, prior to the commencement of that trial, the defendant filed the present motion, which seeks dismissal on statutory speedy trial grounds of those counts of the indictment related to the August 29 and October 14, 1992, incidents. On February 27, 1995, the People filed their response to the defendant's motion. ¹ In between, new counsel entered the case on the defendant's behalf, and a decision was delayed in part to afford the defendant's new attorney time to review the motion.

In his motion, the defendant recognizes that until the severance motion was granted, because of the murder charges included in his indictment, CPL § 30.30(3)(a) exempted the People from the speedy trial obligations set forth elsewhere in CPL § 30.30. The defendant argues, however, that once the severance was granted, CPL § 30.30(3)(a) had no application to the counts of the indictment relating to the October 14, and August 29, 1992, incidents, and that all prosecutorial delay, including that which occurred prior to the entry of the severance order, must be charged to the People. Alleging that the total of that delay exceeds six months, he insists that the remaining counts of the indictment must be dismissed. ² The People oppose the defendant's motion, arguing that at worst, the only delays which may be charged to them are those unexcused delays occurring after entry of the severance order.

The People point out that CPL § 30.30(3) exempts from statutory speedy trial requirements any "criminal action" in which a defendant is accused of homicide. ³ CPL § 1.20(16) provides that a criminal action:

(a) commences with the filing of an accusatory instrument against a defendant in a criminal court ... (b) includes the filing of all further accusatory instruments directly derived from the initial one, and all proceedings, orders and motions conducted or made by a criminal court in the course of disposing of any such accusatory instrument ... and (c) terminates with the imposition of sentence or some other final disposition in a criminal court of the last accusatory instrument filed in the case.

In People v. Osgood, 52 N.Y.2d 37, 44, 436 N.Y.S.2d 213, 417 N.E.2d 507 (1980), the Court of Appeals applying to the term "directly derived" its ordinary meaning of being traceable to originating from, held that an indictment charging the defendant with the same crimes contained in a previously dismissed felony complaint was "directly derived" from the complaint. See also People v. Colon, 76 A.D.2d 805, 429 N.Y.S.2d 432 (1st Dept.1980) (commencement date for speedy trial purposes of count of superseding indictment charging conspiracy, which was not included in original charges, was same as for counts previously charged); People v. Ramkisson, 114 Misc.2d 535, 452 N.Y.S.2d 127 (Sup.Ct.N.Y.Co.1982) (indictment including crimes charged in felony complaint was "directly derived" from complaint even though it included other crimes).

In People v. Lomax, 50 N.Y.2d 351, 356, 428 N.Y.S.2d 937, 406 N.E.2d 793 (1980) the Court interpreted CPL § 1.20(17) to mean that "there can be only one criminal action for each set of criminal charges brought against a particular defendant, notwithstanding that the original accusatory instrument may be replaced or superseded during the course of the action." The same must be true here, where the accusatory instrument is neither replaced nor superseded, but merely divided for purposes of trial. Thus, even if the severed counts are treated as an accusatory instrument separate from that in which the murder charges are included, the severed counts are "directly derived from the initial [accusatory instrument]," and they remain a part of the "criminal action" initiated when the above-captioned indictment was filed. ⁴ Because that "criminal action" was one in which the defendant was accused of Murder in the Second Degree, it appears that CPL § 30.30(3) exempts the People from the statutory obligation to be ready to try the severed counts within six months, whether calculated from the filing of the original indictment or from the filing of the severance order.

Given that the murder charges have not only been ordered to be tried separately, but have already been separately tried, the conclusion that CPL § 30.30 has no application to the untried severed counts seems, in the word of one commentator, "paradoxical." ⁵ Indeed, it may well not have been a result intended by the Legislature. Even assuming, however, that a statutory speedy trial obligation does exist, it is certainly not the one for which the defendant argues.

Subdivision (5) of CPL § 30.30 provides that certain specified events alter the speedy trial requirements applicable to a pending charge. If, for example, a defendant has pleaded guilty in full satisfaction of an accusatory instrument, or if the trial of an accusatory indictment has commenced within the time permitted by CPL § 30.30, the People have met the speedy trial obligations applicable to that accusatory instrument. Thus, CPL § 30.30(5)(a) provides that when a plea of guilty is withdrawn, or when a mistrial is declared, or when a new trial is ordered following an appeal or a collateral attack on a judgment of conviction, the time in which the People are required to be ready for trial begins to run anew when the order permitting the plea to be withdrawn or ordering the new trial becomes final. See, e.g., People v. Davis, 195 A.D.2d 1, 606 N.Y.S.2d 899 (1st Dept.1994) (withdrawal of plea of not responsible by reason of mental disease or defect).

A different issue arises if, for one reason or another, the level of the charges against the defendant changes, and the period of unreadiness permitted for the new and lesser charge is shorter than that permitted for the former and greater one. This may occur, for example, when the initial accusatory instrument is converted to one charging a lesser degree offense, or when charges in an indictment are reduced following inspection of the grand jury minutes by the Court, and a new indictment is filed including the lesser charges. In such circumstances, the time for readiness begins to run from the date of the filing of the new accusatory instrument, and the length of time is determined by the charges in the new accusatory instrument. CPL 30.30(5)(c)-(f). This new beginning, however, is subject to a proviso which, generally speaking, limits the People to a total period of unexcused delay, occurring before and after the filing of the new instrument, no greater than that which would have been permissible had the new instrument not been filed and the charges not been reduced. CPL 30.30(5)(c), (d). ⁶

CPL 30.30, however, makes no provision for a situation like the present one, in which murder and other crimes are charged together in a single indictment, and some of those other crimes are severed from the murder charges for trial. Here, of course, no guilty plea was entered on any of the charges in the indictment, and no trial was begun. Thus, nothing occurred to discharge the People of any delay chargeable to them prior to the time the severance was ordered. Treating the severance order as having created two new indictments in place of the original one, the situation here would be more analogous to that in People v. Lomax, 50 N.Y.2d 351, 428 N.Y.S.2d 937, 406 N.E.2d 793 (1980). In that case the Court of Appeals held that an indictment which replaces an earlier one in the same criminal action "relates back" to the filing of the original accusatory instrument for purposes of determining the commencement of the six month readiness period imposed by CPL 30.30(1)(a). See also People v. Osgood, 52 N.Y.2d 37, 436 N.Y.S.2d 213, 417 N.E.2d 507 (1980).

In this case, however, even if the severed counts are "related back" to the date when the indictment was filed, it is evident that until the severance order was entered, no delay was chargeable to People. In ...