People v. Thill

• Decision Date: 08 April 1980
• Citation: 427 N.Y.S.2d 125,75 A.D.2d 709
• Parties: PEOPLE of the State of New York, Respondent, v. Edward THILL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 125

427 N.Y.S.2d 125

75 A.D.2d 709

PEOPLE of the State of New York, Respondent, v. Edward THILL, Appellant.

Supreme Court, Appellate Division, Fourth Department.

April 8, 1980.

Diebold, Bermingham, Gorman, Brown & Bridge, by Mark J. Mahoney, Buffalo, for appellant.

Lawrence T. Kurlander, Dist. Atty., by Irene Dymkar, Rochester, for respondent.

Before CARDAMONE, J. P., and HANCOCK, SCHNEPP, DOERR and MOULE, JJ.

MEMORANDUM:

On April 15, 1977 defendant was arrested, along with two other persons, on felony charges of criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the fifth degree. After assignment of counsel, a preliminary hearing was held on April 20, 1977 at which time he was held for the Grand Jury. On October 11, 1977 the case was presented to the Grand Jury which handed up an indictment on October 14, 1977. Arraignment was scheduled for October 20, 1977 but was adjourned to October 24, 1977 at the request of defendant's counsel. Defendant was granted an adjournment for the purpose of making motions. On November 14, 1977 motions were heard and the People agreed to furnish defendant with certain material requested including Grand Jury testimony of a codefendant. On December 5, 1977, the requested material not having been furnished, the defendant's attorney appeared in court with the District Attorney and the court was assured the material would be furnished to defendant. On this date the court placed the case on the trial calendar. Prior to this date and even on December 5, 1977 nowhere in the record does it appear that the People announced their readiness for trial nor did they move the case for trial. On December 12, 1977 the defendant made a motion to dismiss the indictment for failure to prosecute in a timely fashion (CPL 30.30). After hearing arguments the court denied the motion and again directed the District Attorney to provide the still missing material to defendant. After going to the District Attorney's office to obtain this material, counsel for defendant and the District Attorney returned to the court to explain that certain material was nonexistent and that the Grand Jury testimony had not been transcribed. At this point the following colloquy took place: "The Court: So the prosecution is not now ready for trial and has not been ready? Mr. Valentino (Assistant District Attorney): I guess you have to say that, Your Honor, because we don't have the grand jury minutes." The court thereupon set aside its denial of the defendant's motion and ordered a hearing on why the People were not prepared for trial. The Court also struck the case from the trial calendar.

The motion to dismiss for failure to prosecute in a timely fashion was argued February 21, 1978 before another judge (the parties agreed that no material fact was in dispute and a hearing was not necessary) (People v. Gruden, 42 N.Y.2d 214, 397 N.Y.S.2d 704, 366 N.E.2d 794). The court found that the People were ready for trial by the "middle of December, 1977, approximately eight months after the commencement of the action." In computing time periods for which the prosecution was not chargeable for delay, the Court excluded a two month, one week period from April 20, 1977 when defendant was held for the Grand Jury to June 27, 1977 when defendant retained the last of three attorneys (the People concede that from June 28, 1977 to October 10, 1977, the delay is unexplainable) for the reason that during this period the defendant discharged two assigned counsel and retained his present attorney and further that certain plea negotiations were taking place between the first two attorneys and the District Attorney and defendant's father and the District Attorney. In this the Court erred. The unexplained period should extend to October 20, 1977, when defendant's arraignment was scheduled, a period of three months, three weeks.

Defendant has the burden to establish that he was denied a speedy trial (CPL 210.45, subd. 7; People v. Del Valle, 63 A.D.2d 830, 406 N.Y.S.2d 642) but having made a prima facie showing of undue delay, the District Attorney must come forward with an explanation of why he is not chargeable with a delay in excess of six months (CPL 30.30, subd. 4; People v. Sturgis, 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331). For preindictment delay to be chargeable to defendant it must be shown that the delay was attributable to defendant, that the indictment was impeded or prevented by defendant's actions (People v. Sturgis, supra). Here there has been no showing that the change of attorneys or plea negotiations had anything to do with the delay in presenting the case to the Grand Jury, and defendant denies making any request for a delay, an allegation not disproved by the District Attorney. Indeed, during this preindictment period the matter is wholly under the control of the People and there is nothing the defendant can do to prevent or delay the presentment of the case to the Grand Jury. Adjournments, motions, and the like generally are not available to defendant at this stage. The District Attorney is, therefore, chargeable with the delay from April 20, 1977 when defendant was held for the Grand Jury until the date of his scheduled arraignment, October 20, 1977 (People v. Robinson, App.Div., 423 N.Y.S.2d 777 (1979); People v. Rivera, 72 A.D.2d 922, 422 N.Y.S.2d 211).

The court also excluded from the time chargeable to the People the period from October 24, 1977 (the defendant's arraignment) to December 12, 1977 (the date the court found that the People were ready for trial) because this period relates to motions made by defendant and was a period of delay requested by him. While requests for time to make motions were made during some of this period, it is not clear that all of this period is properly chargeable to defendant, although the period from October 20, 1977 to December 5, 1977, when defendant's first motions were heard, is properly chargeable to him. Nowhere in the record does it appear that during this postindictment period the People ever announced their readiness for trial to the court. The burden of demonstrating readiness for trial is on the People where more than six months have passed from the commencement of the criminal proceeding (People v. Robinson, supra), and the People must communicate readiness for trial to the court on the record when ready to proceed (People v. Hamilton, 46 N.Y.2d 932, 415 N.Y.S.2d 200, 388 N.E.2d 345). It is insufficient as a matter of law to inform the court of such a claim for the first time in an affidavit or on oral argument in response to a motion to dismiss the indictment. The right to a speedy trial under CPL 30.30 relates to prosecutorial readiness and is not dependent in any way on whether defendant has expressed his readiness for trial or whether defendant has been prejudiced by delay (People v. Hamilton, supra). Although defendant did request various adjournments to make postindictment motions, the fact of the matter is that after arraignment the People failed to announce their readiness for trial and indeed they could not have made such representation. On December 12, 1977 they were not and had not been ready for trial and the court found that the People were not ready for trial until "the middle of December, 1977."

In summary, the period from April 20, 1977 to October 20, 1977, a period of delay not sufficiently explained, is chargeable to the People. This period encompasses six months. Assuming that arguably some period of time thereafter might be chargeable to defendant for motions, the case was not placed on the trial calendar until December 5, 1977, and that was done by the court, sua sponte, only to be removed from the calendar on December 12, 1977 upon the People's admission that they were not ready for trial. In any event more than six months had expired since the commencement of the criminal proceeding and defendant's conviction must be reversed and the indictment dismissed.

Judgment reversed on the law and indictment dismissed.

All concur, except HANCOCK, J., who dissents and votes to affirm the judgment, in the following Memorandum:

Defendant's motion for dismissal of the indictment pursuant to CPL 30.30 was properly denied...