People v. Sturgis

• Decision Date: 02 April 1974
• Citation: 77 Misc.2d 766,354 N.Y.S.2d 968
• Parties: The PEOPLE of the State of New York v. Rita Roberta STURGIS, Defendant.
• Court: New York County Court

Page 968

354 N.Y.S.2d 968

77 Misc.2d 766

The PEOPLE of the State of New York v. Rita Roberta STURGIS, Defendant.

Monroe County Court.

April 2, 1974.

Jack B. Lazarus, Monroe County Dist. Atty. (Herbert J. Lewis, Asst. Dist. Atty., Rochester, of counsel), for the People.

Alfred P. Kremer, Rochester, for defendant.

DECISION

DAVID O. BOEHM, Judge.

This is a motion made pursuant to Section 210.20, subd. 1(g) of the Criminal Procedure Law for an order in accordance with CPL § 30.30(1)(a) to dismiss the indictment on the ground that the defendant has been denied a speedy trial.

The defendant is charged by Indictment No. 645 filed November 2, 1973, with the crimes of Possession of Weapons, Dangerous Instruments and Appliances, and Escape, Second Degree.

On April 2, 1973 a felony complaint was filed against the defendant and a warrant issued on the above charges. The warrant was served and the arrest made on April 6, 1973 and defendant was arraigned on April 7, 1973 in the Rochester City Court Criminal Branch. A preliminary hearing was waived and the case was ordered transmitted to the County Court, pursuant to CPL § 180.30.

On October 29, 1973, it was presented to the Grand Jury and an indictment was returned against the defendant on November 2, 1973. The case appeared on this court's trial calendar February 19, 1974 at which time, by order to show cause, the defendant moved to dismiss the indictment because of the 7-month delay between the commencement of the criminal proceedings and the indictment.

Defendant further argues that the additional four months which elapsed from the time of the indictment to the time the case was reached for trial, represents further delay from which she has suffered prejudice in that 'the testimony of certain key witnesses is not clear in their minds, and . . . some of these witnesses are having trouble in recollecting their testimony.'

The district attorney opposes the motion on two grounds. Each will be taken up separately.

As the first ground, the district attorney asserts that the charges could not be submitted to the Grand Jury sooner because of the backlog of cases, inadequate staff and the resulting necessity of setting up a system whereby cases were presented to the Grand Jury in an order of priority based upon seriousness or importance.

This is the same unadorned argument used by the district attorney to resist prior motions to dismiss for pre-indictment delay. That argument must fail now as it has before, and for the same reasons. Perhaps it is time to clarify and enunciate these reasons in somewhat greater detail.

It will be recalled that the Administrative Board of the Judicial Conference adopted hard-and-fast rules in the Spring of 1971 requiring, among other things, that all non-homicide felonies be tried within six months of arrest. These were to go into effect May 1, 1972.

As that date approached, the Legislature enacted a new Section 30.30 of the Criminal Procedure Law (Ch. 184, Laws 1972) to provide for dismissal in non-homicide felony cases where the People are not ready for trial within six months of the commencement of the criminal action. The new law became effective April 28, 1972.

Subsection 3(b) of new Section 30.30 gives the court discretion not to dismiss where the People are not ready for trial if they were ready before the expiration of the six- month period and are unable to proceed because of some exceptional circumstance.

Subsection 4(a) and (b) exclude reasonable periods of delay when they result from certain proceedings concerning the defendant or result from continuances granted by the court upon the request or with the consent of the defendant.

Subsection 4(g) excepts periods of delay occasioned by exceptional circumstances including, but not limited to, a continuance granted at the prosecutor's request provided the application for the continuance was based and granted upon two specified grounds. No application was made here by the District Attorney. ¹

In computing the 6-month time period, subdivision (c) of subsection 4 excludes any period of delay resulting from the absence or unavailability of the defendant, and defines absence as follows:

'A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence.'

In every other case, Section 30.30 requires that the motion to dismiss 'must be granted.'

The use by the legislature of the word 'must' leaves no doubt that the discretion of the court is limited to those exceptions specifically written into Section 30.30.

In its memorandum, the legislature noted:

'By requiring the prosecutor to be ready for trial within a specified period of time, this bill, which adopts recommendations of the New York State District Attorneys' Association would provide a strong inducement to more rapid disposition of criminal cases.'

McKinney's 1972 Session Laws of New York, Vol. 2, p. 3260.

The cases of People v. Artonio et al., 42 A.D.2d 716, 345 N.Y.S.2d 620 and People v. Samler (Nassau County Court, May 5, 1972) cited by the People are not controlling.

In Artonio, the Second Department held that a delay from arrest on January 23, 1971 to indictment on December 10, 1971, 10 months and 17 days, did not deprive defendants of a speedy trial where there was a 'serious case of calendar congestion' in Nassau County, where the district attorney evaluated the cases to determine their priority of presentment to the Grand Jury, and where the defendants were at liberty during that period and no claim of prejudice had been made by them. An order dismissing the indictment was reversed.

In Samler, the arrest was made on August 5, 1970 and the indictment presented on October 28, 1971. Because of the lack of adequate courtroom facilities to house Grand Jury panels during most of this period, the Nassau County Court held that the district attorney had properly and necessarily presented the cases on a priority system and denied a motion to dismiss the indictment upon the ground of pre-indictment delay.

But both cases involved time periods which pre-existed the effective date of new Section 30.30. Both cases were decided under CPL § 210.20 and, in Artonio, old CPL § 30.20 and Section 12 of the Civil Rights Law as well. Although both decisions were made after April 28, 1972, there was no reference to new Section 30.30 in either one.

In short, neither court passed upon the new mandate of the legislature that a motion to dismiss a non-homicide felony indictment for delay 'must be granted' unless the exceptions of Section 30.30 applied.

Up to that time the rule had been that sanctions would not be imposed where the People are ready for trial but unable to proceed because of reasons outside of their control, i.e., court congestion (People ex rel. Franklin v. Warden, 31 N.Y.2d 498, 341 N.Y.S.2d 604, 294 N.E.2d 199; People v. Canci, 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).

Whether or not it will long remain the rule is open to question, particularly in view of the warning contained in Judge Fuld's concurring opinion in People ex rel. Franklin v. Warden, Supra, 31 N.Y.2d at p. 504, 341 N.Y.S.2d at p. 608, 294 N.E.2d at p. 203:

'It is clear, and becoming ever more evident, that the conditions responsible for delay in the trial of cases are not capable of being remedied by action on the part of the courts or district attorneys alone. ' (I)t is the responsibility of the State, or of its subdivisions to do what is necessary--by furnishing funds, facilities and personnel--to assure the effective operation of the judicial system, and that burden may not be shifted to the defendant. The rule is simply stated: constitution and statutes mandate a speedy trial, and it is incumbent on the State to provide it.' So I wrote in dissent in People v. Ganci (27 N.Y.2d 418, 431, 318 N.Y.S.2d 484, 494, 267 N.E.2d 263, 270), and so I still believe. Indeed, I am heartened by Mr. Justice White's recent observation, in the course of his concurring opinion in Barker v. Wingo (407 U.S. 514, 538, 92 S.Ct. 2182, 2196, (33 L.Ed.2d 101)), that 'unreasonable delay in run-of-the-mill criminal cases cannot be justified by simply asserting that the public resources provided by the State's criminal-justice system are limited and that each case must await its turn. As the Court points out, this approach also subverts the State's own goals in seeking to enforce its criminal laws."

That rule does not apply in any event where 6 months have elapsed before indictment. When this happens, there is no way the People can be ready for trial within 6 months. Accordingly, the indictment 'must be' dismissed, unless the delay falls within one of the stated exceptions. Inadequate staff is not one of those exceptions. (cf. People v. Feliciano, 75...