People v. White

• Decision Date: 03 July 1996
• Citation: 229 A.D.2d 610,645 N.Y.S.2d 562
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert C. WHITE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 562

645 N.Y.S.2d 562

229 A.D.2d 610

The PEOPLE of the State of New York, Respondent, v. Robert C. WHITE, Appellant.

Supreme Court, Appellate Division,

Third Department.

July 3, 1996.

Cynthia Feathers, Saratoga Springs, for appellant.

Stephen F. Lungen, District Attorney (Bonnie M. Mitzner, of counsel), Monticello, for respondent.

Before CREW, J.P., and WHITE, YESAWICH, PETERS and SPAIN, JJ.

WHITE, Justice.

Appeal from a judgment of the County Court of Sullivan County (Vogt, J.), rendered September 30, 1993, upon a verdict convicting defendant of the crimes of sodomy in the first degree (16 counts), sodomy in the second degree (16 counts) and sexual abuse in the first degree (six counts).

On June 5, 1991, defendant, a certified foster parent in Sullivan County, was charged in a 49-count indictment with various charges of sodomy, sexual abuse, rape and endangering the welfare of a child. The People served a notice of readiness for trial on defendant on June 6, 1991 and defendant was subsequently released on bail. On September 6, 1991, defendant made an omnibus motion requesting, inter alia, an inspection of the Grand Jury minutes and dismissal of the indictment for insufficient evidence. In a decision dated January 17, 1992, County Court (Lalor, J.) granted defendant's motion for an in camera inspection of the Grand Jury minutes, directing the People to provide same to the court. County Court reserved decision as to dismissal of the indictment pending review of the Grand Jury minutes. On February 18, 1993, the Chief Clerk notified the parties that the trial would be scheduled for May 24, 1993 before County Court (Bovina, J.), but shortly thereafter the matter was rescheduled due to the unavailability of the court. On March 30, 1993, the parties were advised that the trial would begin on August 16, 1993 before County Court (Kepner Jr., J.). The jury trial in County Court (Vogt, J.) commenced on August 18, 1993 and defendant was found guilty of 38 of the 40 counts submitted to the jury.

Defendant argues on this appeal that he was denied his statutory right to a speedy trial. However, since his trial counsel never moved to dismiss the indictment on this ground prior to trial pursuant to CPL 210.20(1)(g) and CPL 210.20(2), defendant has waived his right to a dismissal on statutory speedy trial grounds (see, People v. Lawrence, 64 N.Y.2d 200, 203-204, 485 N.Y.S.2d 233, 474 N.E.2d 593; People v. Pitcher, 182 A.D.2d 878, 879, 581 N.Y.S.2d 908, lv. denied 80 N.Y.2d 933, 589 N.Y.S.2d 860, 603 N.E.2d 965).

Defendant further argues, however, that his trial counsel's failure to raise the speedy trial issue in County Court prior to trial constitutes ineffective assistance of counsel. It has been held that where a defendant would have had a meritorious statutory speedy trial claim, the failure of counsel to make such a motion is sufficiently egregious to constitute a denial of meaningful representation (see, People v. Thomas, 210 A.D.2d 736, 737, 620 N.Y.S.2d 555; People v. Jackson, 172 A.D.2d 874, 875, 568 N.Y.S.2d 177, lv. denied 78 N.Y.2d 923, 573 N.Y.S.2d 475, 577 N.E.2d 1067). It appears from the record that although the People were ordered on January 17, 1992 to provide County Court with a copy of the Grand Jury minutes to enable it to rule on defendant's motion to dismiss, these minutes were never produced and no decision was ever rendered on defendant's motion. The People submit that this apparent oversight neither impinged on their readiness for trial nor prevented the case from moving forward to trial. The People further contend that there is nothing in the record which indicates any delay in scheduling for any reason other than complying with discovery requests and calendar congestion, which was a result of the monthly rotation of judges from other counties.

Although it is evident that there were significant scheduling problems and court congestion because of the lack of a County Judge in Sullivan County during the period in question, there are certain time delays which are unexplained. On the record before us we cannot determine what effect the People's failure to provide County Court with the Grand Jury minutes had in delaying the commencement of the trial and what, if any, postreadiness delay should be chargeable to the People. Therefore, this matter should be remitted for a hearing before County Court for further development of the record on this issue (see, People...