People v. Wallace

• Decision Date: 22 April 1970
• Citation: 310 N.Y.S.2d 484,258 N.E.2d 904,26 N.Y.2d 371
• Parties: , 258 N.E.2d 904 The PEOPLE of the State of New York, Respondent, v. Charles Thomas WALLACE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 484

310 N.Y.S.2d 484

26 N.Y.2d 371, 258 N.E.2d 904

The PEOPLE of the State of New York, Respondent, v. Charles Thomas WALLACE, Appellant.

Court of Appeals of New York.

April 22, 1970.

Matthew H. Feinberg, and Milton Adler, New York City, for appellant.

John M. Braisted, Jr., Dist. Atty. (Norman C. Morse, Staten Island, of counsel), for respondent.

SCILEPPI, Judge.

The facts herein are not in dispute. On February 2, 1966, while appellant was incarcerated at the Federal Penitentiary in Atlanta, Georgia, a Richmond County Grand Jury returned an indictment charging that on July 22, 1963 appellant committed robbery in the first degree, grand larceny in the second degree and assault in the second degree. This indictment (hereinafter referred to as the 1966 indictment) led to the conviction from which defendant appeals. On May 11, 1966 appellant wrote to the Richmond County District Attorney and inquired as to the status of a prior 1964 indictment. ¹ The reply was that trial would commence at the earliest possible date. No mention was made of the 1966 indictment, then four months old. On November 16, 1966, two months after appellant had moved to dismiss the 1964 indictment, the District Attorney acted to have the Federal authorities produce appellant in New York in connection with the 1964 indictment. Thereafter on December 9, 1966 a warrant was lodged in Georgia in connection with the 1966 indictment. By this time, however, appellant had already been transferred to the Federal Detention Headquarters in New York City. Appellant was arraigned on both indictments on January 4, 1967 and pleaded not guilty.

On June 1, 1967 appellant's motion (made on April 3, 1967) to dismiss the 1966 indictment under sections 8 and 668 of the Code of Criminal Procedure was denied. He thereafter withdrew his plea of not guilty and pleaded guilty to the reduced charge of petit larceny. ² He received a one-year sentence and commenced service of this sentence upon his discharge from the Federal Penitentiary (March 11, 1968).

Appellant argues that the 11-month delay between the rendering of the 1966 indictment (February 2, 1966) and the date of his arraignment (January 4, 1967) deprived him of his right to a speedy trial (see Code Crim.Proc. § 8). We agree. Appellant moved to dismiss the 1966 indictment under section 668 of the Code of Criminal Procedure which provides as follows: '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 by shown.'

While motions under this section are addressed to the discretion of the court (see People v. Alfonso, 6 N.Y.2d 225, 189 N.Y.S.2d 175, 160 N.E.2d 475; People v. Abbatiello, 30 A.D.2d 11, 289 N.Y.S.2d 287), it is incumbent upon the People to establish good cause so as to justify a delay and allow the court, in the exercise of that discretion, to sustain the indictment (People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891). The People in this case have not met that burden. Appellant's incarceration in Federal prison 'affords neither explanation nor excuse' (People v. Piscitello, 7 N.Y.2d 387, 389, 198 N.Y.S.2d 273, 275, 165 N.E.2d 849, 850) and the fact that appellant's attorney answered 'ready' to calendar calls does not spell out a waiver of the right to a speedy trial. On the contrary, it indicates that appellant wished a trial at the earliest possible date.

Notwithstanding the District Attorney's concession that he knew where appellant was and that he did nothing to secure his return to New York, he asks us to hold that the delay was not unreasonable. We cannot agree. While it is clear that not every delay of this nature should be deemed a denial of the right to a speedy trial, we are of the opinion that the circumstances of this case require a...