People v. Walton

• Decision Date: 12 August 1987
• Citation: 136 Misc.2d 539,518 N.Y.S.2d 930
• Parties: The PEOPLE of the State of New York, v. Macio WALTON, Defendant.
• Court: New York Supreme Court

Page 930

518 N.Y.S.2d 930

136 Misc.2d 539

The PEOPLE of the State of New York, v. Macio WALTON, Defendant.

Supreme Court, Criminal Term,

Queens County, Part J7.

Aug. 12, 1987.

Philip Middler, L.A.S., for Walton.

John J. Santucci, Dist. Atty., Aneel Korde, Asst. Dist. Atty., for the People.

LEON A. BEERMAN, Justice.

This case presents an issue relevant to every felony prosecution in this State. The Appellate Divisions have provided conflicting and unclear assistance on the matter, and the Court of Appeals has been silent. The issue, generally described, is whether the time period between the filing of an indictment and the arraignment in Supreme Court is excludable under section 30.30 of the Criminal Procedure Law. More specifically, the question which this Court must answer is whether that time period is excludable in Queens County, where the Criminal Court clerk, in the absence of the parties, generally sets the arraignment date between four or five weeks from the filing of the indictment, because of the backlog in the arraignment part.

Defendant Macio Walton is charged in the indictment with having committed the crimes of criminal possession of stolen property in the first degree and unauthorized use of a vehicle in the third degree. He has moved this Court for an order dismissing the indictment on the ground that the People did not answer ready for trial within the time period specified in CPL section 30.30.

The parties orally argued the issue before the Court, and provided written submissions. The Court now makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

The action commenced with the filing of a felony complaint against defendant on September 15, 1986. The arraignment in Criminal Court was held the next day, and the matter was adjourned to October 7, 1986 in Part AP-6. The People do not contest that this time is chargeable to them.

The minutes of October 7, 1986 indicate that the case was adjourned to December 1, 1986 for presentation to the Grand Jury. The minutes of December 1 indicate that the case was adjourned on that date for Grand Jury presentation. The People contend On January 13, 1987, the instant indictment was filed. The matter was then adjourned to February 23, 1987 for arraignment in the arraignment part (AA-1). The People maintain that this adjournment was excludable.

that these two adjournments are excludable.

The representations of the People at oral argument, which were not challenged by defense counsel and were corroborated by this Court's checking with officials in the clerk's offices of the Criminal Court and Supreme Court in Queens County, indicate that the setting of the Supreme Court arraignment date in this county occurs as follows. The District Attorney files the indictment, and then the clerk in Part AP-6 of the Criminal Court sets the arraignment date and by mail notifies the District Attorney, the defendant, and defense counsel of that date. Because of the backlog of cases in the Supreme Court arraignment part, the clerk usually sets the date at some four or five weeks after the filing of the indictment.

Thus, as already mentioned, defendant's arraignment was set for February 23, or just under six weeks from the filing of the indictment.

On February 23, 1987, the matter was adjourned to March 13, 1987 in this Court, and was again adjourned to April 1, 1987. The People do not contest that these two adjournments were chargeable to them.

On April 1, the People did not answer ready for trial, and thus defendant made the instant motion, arguing that the 198 days between September 15, 1986 and April 1, 1987 are chargeable to the People, requiring dismissal of the indictment.

CONCLUSIONS OF LAW

Since defendant is charged with having committed a felony, the People had to be ready for trial within six months of the commencement of the action. (CPL 30.30, subd. 1, par. (a).)

The action in this case began with the filing of the felony complaint on September 15, 1986. (People v. Osgood, 52 N.Y.2d 37, 40-46, 436 N.Y.S.2d 213, 417 N.E.2d 507 [1980].) Six months from September 15, 1986 is March 15, 1987, or 181 days. (People v. Smith, 97 A.D.2d 485, 485, 468 N.Y.S.2d 129 [2d Dept., 1983].) Since the People did not answer ready by April 1, 1987--a date after March 15--it is their burden to prove that no more than 181 of the 198 days between September 15, 1986 and April 1, 1987 are chargeable to them. (People v. Berkowitz, 50 N.Y.2d 333, 349, 428 N.Y.S.2d 927, 406 N.E.2d 783 [1980].)

The only adjournments which the People allege are excludable are those of October 7, December 1, and January 13. But the minutes of the former two adjournments indicate that those adjournments were requested by the People for Grand Jury presentation. Obviously, then, those two adjournments are chargeable to the People.

Hence, the only time period in question is the 41-day period between the filing of the indictment on January 13, 1987 and the Supreme Court arraignment on February 23, 1987. If this Court finds this period chargeable to the People, then the entirety of the 198 days would be chargeable to them and the indictment would therefore have to be dismissed. On the other hand, were this Court to find that period to be excludable, then only 157 days would be chargeable to the People and thus defendant's motion would have to be denied.

Subdivision 4 of CPL 30.30 sets out the time periods which are to be excluded from the readiness limit. Several paragraphs under this subdivision could conceivably sustain an argument that the time between indictment and arraignment is excludable.

Paragraph (a) excludes "a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to" several enumerated matters, such as pre-trial motions and appeals. Although the statute indicates that this list is not exhaustive, one must wonder why the Legislature did not enumerate the arraignment as one of the excludable "other proceedings" if it desired that proceeding to be excludable.

Paragraph (b) of subdivision 4 excludes "the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his counsel." This Court need not and cannot decide whether the period between defendant's indictment and arraignment is excludable under this paragraph, as the People have not argued that defendant requested or consented to the adjournment, and the record was not developed to enable the Court to make such a determination. The Court notes in passing, however, that although the Second Department had originally held that the period between indictment and arraignment is excludable where the defendant fails to object to that adjournment (People v. Brown, 113 A.D.2d 812, 813, 493 N.Y.S.2d 568 [2d Dept., 1985]; People v. Gaggi, 104 A.D.2d 422, 423, 478 N.Y.S.2d 732 [2d Dept., 1984] ), that appellate court now seems to have acknowledged that People v. Meierdiercks, 68 N.Y.2d 613, 614-15, 505 N.Y.S.2d 51, 496 N.E.2d 210 [1986] requires that the defendant's consent to an adjournment must be explicit, not implicit, for the adjournment to be excludable. (See People v. Vincent Baker, 131 A.D.2d 491, 492, 516 N.Y.S.2d 106, 107 [2d Dept., 1987].)

Paragraph (c) of subdivision 4 excludes "the period of delay resulting from the absence or unavailability of the defendant ... 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. A defendant must be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence[.]" This paragraph does not seem to be directed primarily toward the standard defendant who has just been indicted and who is brought to court by a letter informing him of the indictment and the arraignment date. Nevertheless, it is arguable that this paragraph envisions the exclusion of time necessary to advise the defendant of the arraignment date.

Thus, the Second Department has held excludable "a reasonable period ... [for the People] to notify the defendant and arrange for his arraignment." (People v. Nicholas Pappas, 128 A.D.2d 556, 558, 512 N.Y.S.2d 493, 495 [2d Dept., 1987]; see People v. Vincent Baker, 131 A.D.2d 491, 492, 516 N.Y.S.2d 106, 107, supra; see also People v. Gadsden, N.Y.LJ, Jan. 21, 1982, p. 13, cols 3, 4 [Sup.Ct., Kings Co.].) Pappas, Baker, and Gadsden were all Kings County cases. The delay was 10 days in Pappas, 11 days in Gadsden, and an unspecified period in Baker.

The instant case involves a 41-day delay, and arises in Queens County, where the People do not set the arraignment date or notify the defendant. Rather, the People notify the court of the indictment, and the Criminal Court clerk sets the arraignment date, usually four or five weeks down the line, and then notifies the People and the defendant of the date. The need for a four-or-five week adjournment is occasioned more by the congestion in the arraignment part in Queens County Supreme Court than it is by the concern for sufficient time to obtain the defendant's presence in court, which is the concern of paragraph (c) of subdivision 4.

The critical issue thus becomes whether the congestion in the Supreme Court arraignment part renders excludable the time between indictment and arraignment.

In People v. Conrad, 44 N.Y.2d 863, 864, 407 N.Y.S.2d 694, 379 N.E.2d 220 [1978], affg. on opn. below 93 Misc.2d 655, 655-56 [Monroe Co.Ct.1976], the Court of Appeals held that CPL 30.30 was not violated when the People were prevented from timely answering ready for trial by the trial court's negligent setting of the trial date beyond the 30.30 time limit. Of course, Conrad does not dispose of the instant case, since the 30.30 time limit had not expired in the instant case at the time of the arraignment set by the Criminal Court clerk.

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