People v. White

• Citation: 334 N.Y.S.2d 48,40 A.D.2d 540,32 N.Y.2d 393
• Parties: The PEOPLE, etc., Respondent, v. Lawrence WHITE, Appellant.
• Decision Date: 13 July 1972
• Court: New York Supreme Court Appellate Division

Page 48

334 N.Y.S.2d 48

40 A.D.2d 540

The PEOPLE, etc., Respondent, v. Lawrence WHITE, Appellant.

Supreme Court, Appellate Division, Second Department.

July 13, 1972.

Before HOPKINS, Acting P.J., and MARTUSCELLO, BRENNAN, BENJAMIN and GULOTTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Westchester County, rendered January 20, 1972, convicting him of robbery in the third degree, upon a guilty plea, and imposing sentence.

Judgment affirmed.

In our opinion, any right which defendant may have had with respect to a dismissal of the indictment on account of delay was expressly waived by him.

HOPKINS, Acting P.J., and MARTUSCELLO, BRENNAN and BENJAMIN, JJ., concur.

GULOTTA, J., dissents and votes to reverse the judgment and to dismiss the indictment, with the following memorandum:

In my opinion the delay of over 51 months between the filing of the felony information in the Yonkers City Court in August, 1967 and the return of appellant to the Westchester County Court for trial in November, 1971 was unreasonable as a matter of law and no good cause for the delay was established (United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468; People v. Minicone, 28 N.Y.2d 279, 281, 321 N.Y.S.2d 570, 572, 270 N.E.2d 300, 301, cert. den. 404 U.S. 853, 92 S.Ct. 99, 30 L.Ed.2d 93; mot. to amend remittitur den. 29 N.Y.2d 550, 324 N.Y.S.2d 96, 272 N.E.2d 584; People v. Racassi, 32 A.D.2d 928, 302 N.Y.S.2d 301; People v. Boyd, 37 A.D.2d 582, 323 N.Y.S.2d 29). The fact that appellant was incarcerated for another unrelated crime during this entire period does not dilute his right to a speedy trial (People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891; People v. Winfrey, 20 N.Y.2d 138, 281 N.Y.S.2d 823, 228 N.E.2d 808).

On December 15, 1971 appellant was permitted to plead guilty to a lesser charge only on condition that he withdraw a then pending motion to dismiss the indictment for lack of prosecution and provided also that he waive his right to appeal and thereby the speedy trial issue. After consultation with counsel, appellant stated that he would enter a guilty plea and that it would be done freely and voluntarily. In spite of the prosecutor's demand for these waivers, however, the court did advise appellant of his right to appeal. On the date of sentence appellant placed on the record the facts pointing to a coercive plea.

Initially, it should be noted that we have held that the waiver of the right to appeal as a condition for plea acceptance is contrary to the public policy of this State and unenforceable (People v. Ramos, 30 A.D.2d 848, 292 N.Y.S.2d 938). Thus appellant is properly before us.

Normally we would not have reached the merits of this appeal, because appellant withdrew his ...