People v. Winfrey

• Decision Date: 01 June 1967
• Citation: 228 N.E.2d 808,281 N.Y.S.2d 823,20 N.Y.2d 138
• Parties: , 228 N.E.2d 808 The PEOPLE of the State of New York, Respondent, v. Sebie WINFREY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 823

281 N.Y.S.2d 823

20 N.Y.2d 138, 228 N.E.2d 808

The PEOPLE of the State of New York, Respondent, v.Sebie WINFREY, Appellant.

Court of Appeals of New York.

June 1, 1967.

Matthew Muraskin and James J. McDonough, Mineola, for appellant.

William Cahn, Dist. Atty. (Henry P. DeVine, Mineola, of counsel), for respondent.

BREITEL, Judge.

Defendant appeals from an order of the Appellate Division reversing an order of the County Court dismissing a criminal action for lack of prosecution.

The issue presented is whether defendant has been denied due process in the delayed prosecution of the charges against him for forgery in the second degree and petit larceny.The issue is distinguishable from the right to a speedy indictment after initiation of prosecution and to a speedy trial after indictment.

Defendant moved under sections 667and668 of the Code of Criminal Procedure in the County Court of Nassau County(Oppido, J.) to dismiss the indictment.The motion was granted under section 668 in an opinion, but on appeal the Appellate Division, Second Department(in a Per Curiam memorandum), unanimously reversed the County Court.

The right to a speedy trial is established in New York by statute(Civil Rights Law,Consol.Laws, c. 6, § 12;Code Crim.Proc., § 8, subd. 1;People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891, 57 A.L.R.2d 295).Moreover, the United States Supreme Court has held this term that the Sixth Amendment guarantee of a speedy trial is applicable to the States (Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1).

The facts are not in dispute.In April, 1958defendant allegedly committed the crimes charged, and a warrant for his arrest was issued that month.In June, 1958defendant was incarcerated in Kilby State Prison, Alabama, as a probation violator, he having been previously convicted in Alabama of burglary and given a suspended sentence.A detainer warrant was filed by the Nassau County District Attorney with the authorities at Kilby State Prison in July, 1958, but no effort was made to obtain his presence in New York.Five years later, an indictment alleging two counts of forgery in the second degree and one count of petit larceny, was handed down by the Nassau County Grand Jury in January, 1963.In September, 1963 the Nassau County Police Department was notified by the Alabama authorities that defendant would be released the following month.In October, 1963defendant, after first refusing to do so, waived extradition and was returned to New York.

The motion under review was made in January, 1964, and was decided by the County Court in August, 1964.The order of reversal by the Appellate Division was not entered until July, 1966.

Section 668 of the Code of Criminal Procedure establishes a procedure to dismiss indictments for lack of prompt prosecution'If a defendant indicted for a crime whose trial has not been postponed upon his application, be not brought to trial at the next term of the court in which the indictment is triable, after it is found the court may, on application of the defendant, order the indictment to be dismissed, unless good cause to the contrary be shown.'Section 667 establishes a comparable procedure for dismissing prosecutions for delay in indictment.It has been held that these two sections are mutually exclusive; hence, a delay after prosecution is initiated but prior to indictment is nullified by return of the indictment and that no section 667 motion may be entertained thereafter (People v. Saccenti, 14 N.Y.2d 1, 247 N.Y.S.2d 479, 196 N.E.2d 885, cert. den.379 U.S. 854, 85 S.Ct. 104, 13 L.Ed.2d 57;People v. Pearsall, 6 Misc.2d 40).The continued vitality of this rule, however, may be questioned in the light of the Klopfer decision(supra)(but cf.Nickens v. United States, 116 U.S.App.D.C. 338, 323 F.2d 808, 809--810, cert. den.379 U.S. 905, 85 S.Ct. 198, 13 L.Ed.2d 178, indicating that delay prior to indictment is not a denial of a speedy trial but may be a deprivation of due process of law).

The People offer as justification for the post-indictment delay the fact that defendant was imprisoned in Alabama for a nine-month period after the New York indictment.However, the Nassau County authorities failed to take any steps to secure the release of defendant and his return to New York for trial, either before or after the indictment in New York.The Appellate Division concluded, nevertheless, that no such action was required because 'Much of this time would have passed * * * in the necessary administrative procedures' and 'there was no reason to believe it would succeed' particularly in view of the fact that 'the Alabama authorities had already demonstrated their intent to keep the prisoner'.However, there is no support in the record for the court's conclusion that the administrative process would have been time consuming or even that Alabama had evidenced any intent to treat a request for extradition unfavorably.^*

It is settled that delay in bringing a defendant to trial after indictment is not excused because the defendant is a prisoner elsewhere in New York (People v. Masselli, 11 A.D.2d 722, 204 N.Y.S.2d 698;People v. Goldman, 24 Misc.2d 497, 204 N.Y.S.2d 770;People v. Exter, 4 Misc.2d 651, 158 N.Y.S.2d 60;cf.People ex rel. Harty v. Fay, 10 N.Y.2d 374, 223 N.Y.S.2d 468, 179 N.E.2d 483).Similarly, it is now familiar law that a post-indictment delay is not justified solely because the defendant is a Federal prisoner (People v. Piscitello, 7 N.Y.2d 387, 198 N.Y.S.2d 273, 274, 165 N.E.2d 849, 850, supra).A Federal statute 1087, 239 N.Y.S.2d 378;People v. Peters, 16 A.D.2d 171, 226 N.Y.S.2d 971, revg.198 Misc. 956, 101 N.Y.S.2d 755).The rationale for this rule is that a procedure exists for securing the release of a Federal prisoner for trial on State charges (People v. Piscitello, 7 N.Y.2d 387, 389, 198 N.Y.S.2d 273, 274, 165 N.E.2d 849, 850, supra).A Federal statute(U.S.Code, tit. 18, § 4085) provides that the executive authority of a State may request the transfer of a Federal prisoner to the State for prosecution or punishment, and that the Attorney General of the United States 'shall' transfer the prisoner 'if he finds it in the public interest to do so'.The Piscitello rule has since been adopted in other jurisdictions (Commonwealth v. McGrath, 348 Mass. 748, 752, 205 N.E.2d 710;Richerson v. Idaho, 92 Idaho ---, 428 P.2d 61(April 21, 1967);, State v. Kostura, 98 Ariz. 186, 189, 403 P.2d 283).

The People argue that there is no comparable Alabama statute, and that, therefore a request for release of defendant before his sentence was completed would have had a doubious result.Much reliance is placed on the fact that Alabama is not a party to the uniform Agreement on Detainers, providing for automatic release of prisoners for prosecution in another State (Code Crim.Proc., § 669--b).This argument, however, overlooks the fact that Alabama, like New York (Code Crim.Proc., §§ 832,848), makes provision for transfer of defendants to other States in the discretion of the Governor (Ala.Code, tit. 15, § 66).Moreover, it is likely that all State Governors have discretionary power to release prisoners upon the request of another sovereign (seePeople v. Quiller, 47 Misc.2d 810, 814--815, 263 N.Y.S.2d 203, 207--208).

Substantial legal distinction cannot be drawn between the power vested in the Attorney General of the United States by Federal statute(U.S.Code, tit. 18, § 4085) and the discretion enjoyed by the Governor of Alabama pursuant to the law of that State.An argument can, of course, be made that a State executive is less likely to co-operate with authorities in other States than is the Federal Government.It would be extremely difficult, however, to verbalize such pragmatic distinctions in terms of a rule of law.It is, moreover, a relatively simple matter to request the Governor of a sister State to turn over a prisoner; and there is no contention that if such a request is made and rejected a delay in bringing the prisoner to trial in New York occasioned by his foreign imprisonment would be unreasonable.The point is that in this case no effort of any kind was made; consequently, the People have failed to establish good cause within the meaning of section 668.

Other States that have considered the problem have arrived at Conflicting results.Delaware and Oklahoma courts have held that the State is under no duty to request the release of a sister State prisoner, and delay in trial occasioned by his imprisonment in the sister State is excusable (Cunningham v. State, 188 A.2d 359, 360(Del.);Traxler v. State, 96 Okl.Crim. 231, 236, 251[228 N.E.2d 812] P.2d 815).Arkansas has reached a contrary result (Pellegrini v. Wolfe, 225 Ark. 459, 463, 283 S.W.2d 162), although it adopts the rule that discharge of the prosecution is not warranted where the defendant did nothing to bring himself to trial (id. pp. 462--463, 283 S.W.2d 162).(In New York, it has been held that it is not necessary for the prisoner to attempt to secure an early trial (People v. Prosser, 309 N.Y. 353, 357--358, 130 N.E.2d 891, 57 A.L.R.2d 295, supra), but a procedure now exists whereby he may do so, if he is imprisoned in New York (Code Crim.Proc., § 669--a).)It has been held in Illinois that imprisonment in a sister State does not justify a delay in trial, at least where the imprisoning State is a party to the Uniform Criminal Extradition Act(People v. Bryarly, 23 Ill.2d 313, 178 N.E.2d 326(per Schaefer, J.)).(But cf.United States v. Santos, 372 F.2d 177(2d Cir.), involving the Federal rules and a period of but two years of claimed delay).

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(supra) it was established that a State...