People v. Tower

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PER CURIAM; WILLIAMS
• Citation: People v. Tower, 239 N.Y.S.2d 212, 18 A.D.2d 284 (N.Y. App. Div. 1963)
• Decision Date: 11 April 1963
• Parties: The PEOPLE of the State of New York, Appellant, v. Joseph TOWER, Respondent.

Page 212

239 N.Y.S.2d 212

18 A.D.2d 284

The PEOPLE of the State of New York, Appellant, v. Joseph TOWER, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Argued Jan. 11, 1963.

Decied April 11, 1963.

Carman F. Ball, Buffalo, Leonard Finkelstein, Buffalo, of counsel, for appellant.

Pacini & Runfola, Buffalo, Joseph P. Runfola, Buffalo, of counsel, for respondent.

Before WILLIAMS, P. J., and GOLDMAN, HALPERN, McCLUSKY, and HENRY, JJ.

PER CURIAM.

The defendant-respondent was indicted for the crimes of Burglary and Larceny on February 24, 1961, jointly with one Edward Loomis. The police did not succeed in apprehending the defendant-respondent until June 1, 1962, when he voluntarily surrendered to the police. The defendant was arraigned on that day and entered a plea of not guilty, and thereafter moved for a dismissal of the indictment because of delay in prosecution, pursuant to section 668 of the Code of Criminal Procedure. The motion was granted by the County Judge upon the basis of affidavits submitted to him; no hearing was held and none was requested either by the People or by the defendant.

Upon the basis of the affidavits before the County Judge, we find, contrary to the conclusions of the County Judge, that the defendant was aware of the outstanding indictment against him throughout substantially the entire period between the date of the indictment and the date of his arraignment and that he evaded apprehension by the police throughout this time. It appears that inquiry was made on February 11, 1961, prior to the finding of the indictment, by Detective Sergeant Quinn at the home of the defendant's mother, where, according to the latest information which the police had, the defendant was residing. At that time, a girl who identified herself as the defendant's sister was informed that the police were looking for him. In March, 1961, after the finding of the indictment, the same police officer talked to the defendant on the telephone and told him he was wanted by the police, and advised him to give himself up. The police were not aware of the whereabouts of the defendant, but the telephone connection had been arranged by one Elizabeth Runfola, a friend of the co-defendant Loomis. Another police officer called on the defendant's mother in March, 1961, and was told by her that she had not seen the defendant or heard from him in several months. The mother of the co-defendant Loomis telephoned the defendant's mother on February 15, 1961, and advised her that the police were looking for her son on a burglary charge. On several occasions thereafter, she repeated the call. Sometime in April, 1961, Mrs. Loomis talked to the defendant himself on the telephone and told him that the police were still looking for him.

The co-defendant Loomis was arrested by the police; he was arraigned on February 27, 1961; thereafter on April 7, 1961, he pleaded guilty to the reduced charge of petit larceny and was given a suspended sentence thereon.

Miss Runfola, the friend of the co-defendant Loomis, referred to above, stated in her affidavit that she was advised on February 12, 1961, that Loomis had been arrested and she was told by Sergeant Quinn that he was trying to pick up the defendant on the same burglary charge. Miss Runfola talked to the defendant on the telephone three of four times and told him that Sergeant Quinn was looking for him on a burglary charge and that he should give himself up. Sometime in March, 1961, Sergeant Quinn was at her place of employment and while he was there the defendant called Miss Runfola on the telephone and she again informed him that the police were still looking for him and then she handed the telephone to Sergeant Quinn. She heard Sergeant Quinn ask the defendant 'to turn himself in and make things good for both him and Eddie Loomis', and she heard Tower reply that 'he would think it over'. Subsequently, she talked to Tower on one more occasion and again asked him to give himself up.

The defendant submitted an affidavit asserting in general terms that he 'had never received any information nor even been approached by the Buffalo Police Department or other police authorities relevant to his being wanted for the crimes charged under the aforementioned indictment'. But he did not deny specifically any of the conversations with Sergeant Quinn, Mrs. Loomis or Miss Runfola, sworn to by them in their respective affidavits. Neither was any affidavit submitted by Tower's Mother contradicting any of the statements made in the affidavits concerning conversations with her.

The defendant in his affidavit points out certain facts which he argues should have led diligent police authorities to ascertain his whereabouts and to catch up with him, despite his attempts to evade the police. He asserts that he worked in two different places in Buffalo from April 5, 1961 to March 9, 1962; that he applied for a marriage license on November 14, 1961 and that a notice of the application was published in the local newspapers; that he was married on November 25, 1961. He states that prior to the date of his marriage he resided with his mother at 1732 Genesee Street, which was also the address given in his marriage license application, but significantly he does not state where he resided after his marriage or whether his place of residence was listed in any telephone or city directory. The defendant also states that on June 24, 1961 he was convicted of an infraction of the Vehicle & Traffic Law by a Justice of the Peace in the Town of Evans, a town in Erie County, and was fined $50 and was placed on probation for its payment.

The defendant contends that he surrendered to the police because his wife saw his photograph in the window of a department store, accompanied by a notice that he was wanted by the police, and she informed him of this and shortly thereafter, he voluntarily surrendered to the police.

The police may well be criticized in this case for lack of diligence in apprehending the defendant, but certainly the defendant is in no position to complain of it. A defendant who successfully evades arrest for a prolonged period cannot take advantage of the resulting delay in prosecution as a ground for dismissal of the criminal charge.

The affidavits established overwhelmingly that the defendant knew the police were looking for him for months before his surrender, and that he chose to evade apprehension. If the defendant had desired to have a speedy disposition of the charge against him, he could have had it at any time by disclosing his whereabouts to the police. The defendant's conduct certainly indicated that he was 'not intent on a speedy trial' (People v. Piscitello, 7 N.Y.2d 387, 388, 198 N.Y.S.2d 273, 274, 165 N.E.2d 849, 850). There is nothing in the principle of the Prosser case (People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891, 57 A.L.R.2d 295) which authorizes a dismissal of the indictment for delay in prosecution under these circumstances. In every case in this State in which an indictment has been dismissed because of delay in arraignment under the principle of the Prosser case, the defendant was actually in the custody of the public authorities of this State throughout the period of delay, or he was in the custody of public authorities elsewhere and could readily have been brought into the State for arraignment.

The order appealed from should be reversed and the indictment reinstated.

Order reversed on the law and facts and indictment reinstated.

All concur except WILLIAMS, P. J., who dissents and votes to affirm, in a separate opinion.

WILLIAMS, Presiding Justice (dissenting).

It is provided in both section 8 of the Code of Criminal Procedure and section 12 of the Civil Rights Law that in a criminal action the defendant is entitled to speedy trial. These sections are implemented by, but not necessarily dependent upon, section 668 of the Code of Criminal Procedure, which provides:

'If a defendant, indicted for a crime whose trial has not been postponed upon his application, be not brought to trial at the next term of the court in which the indictment is triable, after it is found the court may, on application of the defendant, order the indictment to be dismissed, unless good cause to the contrary be shown.'

The burden of showing 'good cause' why the indictment should not be dismissed under section 668 is on the prosecution. (People v. Bryant, 12 N.Y.2d 719, 720, 233 N.Y.S.2d 771, 772, 186 N.E.2d 127, 128; People v. Wilson, 8 N.Y.2d 391, 396, 208 N.Y.S.2d 963, 966, 171 N.E.2d 310, 313; People v. Prosser, 309 N.Y. 353, 361, 130 N.E.2d 891, 896, 57 A.L.R.2d 295.)

After examining the affidavits submitted and hearing arguments, the County Judge found that the prosecution had failed to show 'good cause' for a period of delay of more than 15 months between the indictment and the arraignment. There were ample reasons for the County Court Judge to so find, and his determination should not be disturbed.

The explanation of the delay by the prosecution is novel and astounding. In essence it is founded upon the failure of the defendant to surrender to the authorities when, it is claimed, he knew that he was wanted. The majority opinion finds that in failing to surrender he was evading apprehension. Under the facts of this case, this amounts to a determination that the failure to accept an invitation to surrender makes one an evader. An examination of the facts will disclose that there was almost no effort on the part of the authorities to apprehend the defendant. In fact, his arraignment on June 1, 1961 came about as a result of his surrender to the authorities after he found that he was wanted, and not as a resulf of any diligence whatsoever on the part of the law-enforcement agencies. The defendant contends that he did not know he was wanted until the last of May. This seems logical because if he had successfully evaded apprehension prior to that time there would...