People v. Watts

• Decision Date: 26 February 1982
• Citation: 448 N.Y.S.2d 299,86 A.D.2d 964
• Parties: PEOPLE of the State of New York, Respondent, v. Herman WATTS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 299

448 N.Y.S.2d 299

86 A.D.2d 964

PEOPLE of the State of New York, Respondent, v. Herman WATTS, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Feb. 26, 1982.

Rose H. Sconiers by Joseph Connelly, Buffalo, for appellant.

Edward C. Cosgrove by Kurt Sajda, Buffalo, for respondent.

Before HANCOCK, J. P., and CALLAHAN, DOERR, BOOMER and SCHNEPP, JJ.

MEMORANDUM:

In a prior decision (People v. Watts, 78 A.D.2d 1008, 433 N.Y.S.2d 669) we held this appeal and remitted the case to Erie County Court for the purpose of conducting an evidentiary hearing on defendant's claim that he was denied his constitutional right to a speedy trial (CPL 30.20) because of an 18-month delay between defendant's arrest on August 13, 1977 and his trial on February 6, 1979. From the record previously before us we were unable to determine the reason for the delay between the granting of a preclusion order on March 28, 1978 and the trial.

We now have before us the record of the speedy trial hearing which sustains the finding of County Court that, except for three weeks chargeable to the defendant and two weeks to the People, the delay during this 10-month period is attributable to "scheduling, assignment and delay". Of the remaining eight months of delay which preceded March 28, 1978, we find that two months were preindictment and unexplained and, as such, chargeable to the People (see People v. Staley, 41 N.Y.2d 789, 396 N.Y.S.2d 339, 364 N.E.2d 1111). The defendant is charged with the 45-day adjournment period requested at his arraignment on October 24, 1977, when the People answered ready for trial. Thus, there is, at most, 16 months of delay which is attributable generally to the State; a delay which is not necessarily excessive (see People v. Ganci, 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). A great portion of this delay is due to court scheduling, assignment and delay; an excuse which "weighs less heavily" against the State (see People v. Johnson, 38 N.Y.2d 271, 279, 379 N.Y.S.2d 735, 342 N.E.2d 525). The defendant was incarcerated until August 14, 1978. There is no claim, however, that the incarceration impaired his ability to prepare his defense (see People v. Taranovich, 37 N.Y.2d 442, 446, 373 N.Y.S.2d 79, 335 N.E.2d 303; see, also, People v. Kelly, 38 N.Y.2d 633, 382 N.Y.S.2d 1, 345 N.E.2d 544). County Court found that the pretrial delay caused the defendant to forget some of the details of the alleged crime and that because of this "memory loss, coupled with defendant's agitation during the trial", defense counsel was prompted "to alter the defense strategy by...