People v. White

• Citation: 345 N.Y.S.2d 513,32 N.Y.2d 393,298 N.E.2d 659
• Parties: , 298 N.E.2d 659 The PEOPLE of the State of New York, Respondent, v. Lawrence WHITE, Appellant.
• Decision Date: 06 June 1973
• Court: New York Court of Appeals Court of Appeals

Page 513

345 N.Y.S.2d 513

32 N.Y.2d 393, 298 N.E.2d 659

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

Court of Appeals of New York.

June 6, 1973.

Robert W. Stieve, New York City, and J. Radley Herold, White Plains, for appellant.

Carl A. Vergari, Dist. Atty., (Janet Cunard, White Plains, of counsel), for respondent.

FULD, Chief Judge.

The defendant, indicted for robbery in the first degree, moved to dismiss his indictment on the ground that his right to a speedy trial had been denied. While that motion was pending, the district attorney offered to allow him to plead to robbery in the third degree (a class D felony; new Penal Law, § 160.05, Consol.Laws, c. 40), but only on condition that his acceptance take place before his motion was decided. ¹ Complying with that condition, the defendant entered his plea to the lower crime. On this appeal, two questions are presented for our determination: (1) was the defendant deprived of his right to a speedy trial and (2) was his 'waiver' of that right accomplished by coercion or duress. Both questions should be answered in the affirmative.

On July 22, 1967, a robbery was committed in a Yonkers supermarket. On August 30, 1967, a felony information was filed in the Yonkers Court of Special Sessions, charging the defendant and two others with the robbery. ² At about the same time the defendant, incarcerated in the Queens County House of Detention on other charges, was orally advised of such detainer; he never appeared in the Yonkers court. According to the district attorney, the Yonkers warrant was not lodged at the Queens jail until February 10, 1968. At all events, the defendant, while serving a prison term for other crimes, was indicted for the Yonkers holdup--on a charge of robbery in the first degree--on December 23, 1970. He was not brought to the Westchester County Court for arraignment until November 15, 1971. Counsel was assigned to represent the defendant and, on November 29, he brought an article 78 proceeding to dismiss the indictment for failure to afford his client a speedy trial. Defense counsel states that, although the Supreme Court justice, before whom the matter came, decided the petition 'on the merits' against the defendant, he gave him no order from which he could appeal. On December 4, he was advised by the district attorney that the defendant would be brought to trial on December 15, 1971.

On December 7, the defendant moved, by motion returnable December 17, in the Westchester County Court to dismiss the indictment on the ground that, by virtue of a delay of 51 months--the period between August, 1967 and November, 1971--he had been denied his constitutional and statutory right to a speedy trial. On December 14, three days before the return day of the respondent's motion, the district attorney, in an affidavit in opposition, asserted that, since the indictment, which he described as the only 'proper accusatory instrument', was filed only 11 months before, there was no undue delay in the trial. He further declared that any lag resulted from the prosecution's practice of treating 'jail' and 'bail' cases alike for 'purposes of trial priority' and that the case was being reached for trial 'in the normal course of events.' ³

On the same date, December 14, upon the district attorney's application, the court agreed to mark the case ready for the following morning subject to its decision on the motion for a speedy trial. On the next day, however, the defendant changed his plea of not guilty to guilty to the reduced charge of robbery in the third degree. He admitted his guilt and, upon the prosecutor's insistence, agreed to withdraw all previously made motions.

At the sentencing on January 20, 1972, defense counsel, after relating the facts described above, declared that the assistant district attorney, on December 14, had informed him that there was no decision on the speedy trial motion and that, 'if we didn't take the deal now before that motion was decided * * * and if we didn't withdraw our motions, there would be no deal', and the defendant 'would be forced * * * to go to trial some fifty one (51) months after the crime allegedly occurred'. The trial judge, stating that the motions 'were withdrawn', proceeded to pass sentence.

On appeal, the Appellate Division, one justice dissenting, affirmed on the ground that 'any right which defendant may have had with respect to a dismissal of the indictment on account of delay was expressly waived by him' (40 A.D.2d 540, 334 N.Y.S.2d 48). In the view of the dissenting judge, '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 (defendant) 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'; he added that, although the right to a speedy trial could be waived if assent were freely and knowingly given, it appeared to him that the defendant 'was coerced into doing so by an unlawful exaction and by duress.'

Right to a Speedy Trial

A defendant's right to a speedy trial, guaranteed both by Constitution (U.S.Const., 6th and 14th Amdts.; see Dickey v. Florida, 398 U.S. 30, 37--38, 90 S.Ct. 1564, 26 L.Ed.2d 26; Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 21 L.Ed.2d 607; Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 18 L.Ed.2d 1) and by statute (CPL 30.20, Consol.Laws, c. 11--A; Civil Rights Law, § 12 Consol.Laws, c. 6), is violated if there is an excessive delay between institution of the prosecution--whether by felony information or complaint, detainer warrant or indictment--and the trial. (See, e.g., United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468; People v. Minicone, 28 N.Y.2d 279, 281, 321 N.Y.S.2d 570, 571, 270 N.E.2d 300, 301; People v. Winfrey, 20 N.Y.2d 138, 143--144, 281 N.Y.S.2d 823, 827--828, 228 N.E.2d 808, 811--812; People v. Prosser, 309 N.Y. 353, 361, 130 N.E.2d 891, 896.) ⁴ People v. Winfrey (20 N.Y.2d 138, 281 N.Y.S.2d 823, 228 N.E.2d 808, Supra) is, on this score, virtually identical with the present case. There the defendant was charged with the crime of forgery committed on or about April 8, 1958, and an information was sworn to in the District Court of Nassau County some three weeks later. In July of 1958, a detainer warrant was lodged with officials of an Alabama State Prison where he was incarcerated on an unrelated matter. No effort was made to obtain his return to New York, and he was not indicted on the forgery charge until January of 1963. Brought back to this State in October of that year, he moved, in January, 1964, to dismiss the indictment for 'lack of prosecution' (20 N.Y.2d, at p. 139, 281 N.Y.S.2d, at p. 824, 228 N.E., at p. 809). In reversing the Appellate Division and upholding the trial judge's grant of the motion, this court, in an opinion by Judge Breitel, declared (pp. 143--144, 281 N.Y.S.2d p. 828, 228 N.E.2d p. 812): 'From a constitutional aspect, it appears that the four and a half years' delay in prosecuting defendant prior to his indictment, but after the initiation of criminal proceedings, deprived him of due process of law. Prior to the Klopfer decision ((Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1) Supra) it was established that a State denies a defendant due process of law if it unreasonably delays his prosecution, after the initiation of criminal proceedings * * * It may be that this doctrine has now been incorporated in the 'speedy trial' guarantee of the Sixth Amendment pursuant to the Klopfer rule; but it is only of limited analytical importance whether the right is one of a 'speedy trial' of 'due process of law'. In either event, this delay of four and a half years * * * is unreasonable, since no effort was made to secure defendant's release or transfer.' It is for the prosecution, the court continued, to establish a reasonable basis for postponing the trial (20 N.Y.2d, at p. 144, 281 N.Y.S.2d p. 829, 228 N.E. p. 812):

'Moreover, there is staleness in a nine-year-old charge of crime with all the consequences of difficulties of proof from the side of the defendant as well as the prosecution. To be sure, the People have the untrammeled power to institute a prosecution any time within the limitations period--at least five years in the case of this felony--but Once having instituted the prosecution by detainer warrant, indictment or other initiatory process, they have the obligation of advancing it unless there is a reasonable ground for delay.' (Emphasis supplied.) ⁵

Only the fact that the defendant in the Winfrey case was in an out-of-state prison distinguishes that case from the one now before us. On this appeal, the People do not even attempt to excuse the four-year delay by claiming that they were unable to locate him. Having discovered him in the Queens jail where the warrant was lodged, the Westchester authorities had only to make a simple inquiry of the court in Queens County to ascertain his subsequent location and bring him to trial. Accordingly, there can be no question but that the defendant was denied the right to be speedily tried.

Waiver and Plea

A defendant may, of course, waive his right to a speedy trial (see, e.g., People v. Dwight S., 29 N.Y.2d 172, 175, 324 N.Y.S.2d 58, 60, 272 N.E.2d 558, 559; People v. Chirieleison, 3 N.Y.2d 170, 173, 164 N.Y.S.2d 726, 727, 143 N.E.2d 914, 915; Becker v. State of Nebraska, 435 F.2d 157, 158, 8 Cir., cert. den. 402 U.S. 981, 91 S.Ct. 1684, 29 L.Ed.2d 145), but the waiver of a constitutional right, like any other, must be both 'knowingly and voluntarily made.' (Barker v. Wingo, 407 U.S. 514, 529, 92 S.Ct. 2182, 33 L.Ed.2d 101; see People v. Mulligan, 24 N.Y.2d 948, 949, 302 N.Y.S.2d 582, 583, 250 N.E.2d 70, 71; cf. Matter of Lawrence S., 29 N.Y.2d 206, 209, 325 N.Y.S.2d 921, 923, 275 N.E.2d 577, 578; Johnson v. Zerbst, ...