People v. Wilson

• Decision Date: 18 April 1960
• Citation: 10 A.D.2d 297,200 N.Y.S.2d 792
• Parties: PEOPLE of the State of New York, Respondent, v. Herbert WILSON, alias King Solomon Johnson, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 792

200 N.Y.S.2d 792

10 A.D.2d 297

PEOPLE of the State of New York, Respondent, v. Herbert WILSON, alias King Solomon Johnson, Appellant.

Supreme Court, Appellate Division, Second Department.

April 18, 1960.

Nancy Carley, Jackson Heights, for appellant.

Frank D. O'Connor, Dist. Atty., Long Island City (Benj. J. Jacobson, Long Island City, and Howard D. Stave, New York City, of counsel), for respondent.

Before NOLAN, P. J., and BELDOCK, UGHETTA, KLEINFELD, and PETTE, JJ.

NOLAN, Presiding Justice.

On December 16, 1957, this court (1) reversed a judgment rendered by the County Court, Queens County, which convicted appellant, upon his plea of guilty, of attempted robbery in the third degree, and (2) dismissed the indictment which had resulted in that judgment, because appellant had been denied his right to a speedy trial (Code Crim.Proc. § 8), 'without prejudice to the right of the respondent [The People of the State of New York] to proceed as permitted in section 673 of the code, if so advised' (People v. Wilson, 5 A.D.2d 690, 169 N.Y.S.2d 285, 286).

Section 673 of the Code of Criminal Procedure, as twice amended in 1957, provides 'An order for the dismissal of the action, as provided in this chapter, is a bar to another prosecution for the same offense, if it be a misdemeanor; but, except as provided in section six hundred sixty-nine-a hereof, it is not a bar, if the offense charged be a felony.' As amd. by L.1957, c. 440, § 2, eff. Sept. 1, 1957.

'An order for the dismissal of the action, as provided in this chapter, is a bar to another prosecution for the same offense, if it be a misdemeanor; but, except as provided in section six hundred sixty-nine-b hereof, it is not a bar, if the offense charged be a felony.' As amd. by L.1957, c. 524, § 2, eff. Sept. 1, 1957.

Sections 669-a and 669-b have no application to the instant case.

The respondent did proceed as permitted by section 673, and appellant was again indicted for the same crimes of which he had been accused by the original indictment. By notice dated December 29, 1958, appellant moved to dismiss the indictment on the ground that he had been denied his 'constitutional right to a speedy trial'. That motion was denied, and appellant was again convicted, upon his plea of guilty, of attempted robbery in the third degree. On this appeal from the judgment of conviction, the only questions presented arise out of the denial of appellant's motion to dismiss the indictment. It is his contention that section 673 of the Code of Criminal Procedure insofar as it 'allows a prosecutor to delay the prosecution of any felony case at least five years without good cause' is unconstitutional, that it nullifies his right to a speedy trial, and that the error of the respondent in delaying his prosecution under the first indictment has not been corrected by his reindictment for the same crimes, nor has the already established prejudicial delay, which this court found existed in dismissing the first indictment, been eradicated by the subsequent proceedings. The delay of which appellant complains all preceded the dismissal of the original indictment. It is not claimed that there was any delay in prosecution under the second indictment.

We agree that unreasonable delay in criminal prosecutions should not be tolerated and that a defendant in a criminal action should not be exposed by reason of such delay 'to the hazard of a trial, after so great a lapse of time as to justify the belief, that however innocent, the means of proving his innocence may not be within his reach' (see Report of Commissioners on Practice and Pleadings [1849], pp. 341-342; People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891, 57 A.L.R.2d 295). The Legislature has decided, however, what constitutes unreasonable delay in commencing criminal prosecutions by fixing the time within which they may be commenced (Code Crim.Proc. §§ 141-144-a; see Report of Commissioners on Practice and Pleadings [1849], supra) and has clearly provided that within such limitations an accused may be prosecuted for a felony even though an indictment therefor may have been dismissed for want of, or delay in, prosecution (Code Crim.Proc. §§ 144-a, 673). The right to a dismissal of the prosecution of a person held to answer, if an indictment is not promptly found, and the right to a speedy trial after indictment, are also provided by statute (Code Crim.Proc §§ 8, 667-673; Civil Rights Law, § 12). Such rights are guaranteed, however, only to defendants against whom criminal prosecutions are pending and are not intended to, nor do they, restrict the right of the State to commence criminal prosecutions within the time limited by law. The point of beginning of the time for bringing an accused to trial is the commencement of the prosecution against him, and, according to our statutory scheme, except as provided in sections 669-a and 669-b of the Code of Criminal Procedure, the filing of a new indictment, after the dismissal of a previous indictment for the same offense because of delay in bringing the accused to trial, commences a new period of time during which the prosecution may be continued. Concededly, appellant's reindictment and subsequent prosecution were expressly authorized by law, and we are unable to perceive anything unconstitutional in the statutes which authorized them.

There is no express provision of our State Constitution which sustains appellant's contention. The right to a speedy trial, which is embodied in the Constitution of the United States and the Constitutions of many of our States, is provided in this State by statute only. Neither is appellant aided by the Sixth Amendment to the United States Constitution, which provides that an accused shall have the right to a speedy and public trial. That amendment applies to the United States courts alone, and does not restrict the powers of the State governments (People v. Hall, 51 App.Div. 57, 60, 64 N.Y.S. 433, 435; People v. Jelke, 284 App.Div. 211, 225, 130 N.Y.S.2d 662, 675, affirmed 308 N.Y. 56, 123 N.E.2d 769). Appellant does not argue to the contrary but urges that deprivation of a speedy trial by permitting, during the time limited by statute, the continuation of prosecution under the circumstances here involved, violates the due process clauses of the New York State Constitution (art. I, § 6) and the Fourteenth Amendment to the Constitution of the United States. No authority has been cited which supports that argument. Indeed, in the only criminal case cited by appellant (Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782), it was held that in a prosecution in a State court for a state crime, the Fourteenth Amendment did not forbid the admission of relevant evidence even though it had been obtained by unreasonable search and seizure. With respect to the question here presented, the court said (338 U.S. at page 26, 69 S.Ct. at page 1360):

'Unlike the specific requirements and restrictions placed by the Bill of Rights, Amendments I to VIII, upon the administration of criminal justice by federal authority, the Fourteenth Amendment did not subject criminal justice in the States to specific limitations. The notion that the 'due process of law' guaranteed by the Fourteenth Amendment is shorthand for the first eight amendments of the Constitution and thereby incorporates them has been rejected by this Court again and again, after impressive consideration. * * * The issue is closed.'

In Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, the question was whether, in a prosecution by a State for murder, a view of the scene of the crime by the court, jury and counsel, in the absence of a defendant who made demand that he be present, was a denial of due process under the Fourteenth Amendment. In holding that it was not, Cardozo, J., writing for the majority, said (291 U.S. at page 105, 54 S.Ct. at page 332):

'The commonwealth of Massachusetts is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness, unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. Twining v. New Jersey, 211 U.S. 78, 106, 111, 112, 29 S.Ct. 14, 53 L.Ed. 97; Rogers v. Peck, 199 U.S. 425, 434, 26 S.Ct. 87, 50 L.Ed. 256; Maxwell v. Dow, 176 U.S. 581, 604, 20 S.Ct. 494, 44 L.Ed. 597; Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232; Frank v. Mangum, 237 U.S. 309, 326, 35 S.Ct. 582, 59 L.Ed. 969; Powell v. Alabama, 287 U.S. 45, 67, 53 S.Ct. 55, 77 L.Ed. 158, 84...