People v. Winter

• Decision Date: 10 November 1958
• Parties: PEOPLE v. I. Jesse WINTER.
• Court: New York Court of General Sessions

Page 254

182 N.Y.S.2d 254

18 Misc.2d 205

PEOPLE v. I. Jesse WINTER.

Court of General Sessions, New York County.

Nov. 10, 1958.

Corbin, Bennett & Delehanty, New York City, Harold H. Corbin, New York City, of counsel for defendant.

Frank S. Hogan, New York City, by Burton B. Roberts, Asst Dist. Atty., New York City, of counsel, in opposition of said motion.

SCHWEITZER, Judge.

These are motions by defendants Winter and Wolf for an order of dismissal of indictments pursuant to section 668 of the Code of Criminal Procedure upon the ground that defendants have been deprived of their right to a speedy trial.

Three indictments are involved. The first indictment (No. 2565-54) was found on July 27, 1954. It charged defendant Winter and three others with the crime of conspiracy and with various violations of sections 270-a and 270-d of the Penal Law. Defendant Winter was arraigned on that indictment on July 29, 1954, at which time he was admitted to bail. Thereafter, the indictment appeared on the trial calendar on four occasions, the last one being April 21, 1955.

The second indictment (No. 43-55) was found on January 5, 1955. It charged defendant Winter as sole defendant with additional violations of sections 270-a and 270-d of the Penal Law. The third indictment (No. 45-55) was also found on January 5, 1955. It charged defendants Winter and Wolf jointly with the crimes of conspiracy, attempt to suborn perjury in the first degree, inducing another to commit perjury, and attempting fraudulently to induce a witness to give false testimony and to withhold true testimony.

Arraignment under the second and third indictments took place on January 6, 1955, at which time both defendants were admitted to bail. These indictments appeared on the Trial Calendar eleven times, the last time being April 4, 1956.

In the latter part of June, 1958--almost four years after the finding of the first indictment, and about three and one-half years after the return of the second and third indictments--the district attorney's office notified defendants' counsel that the indictments would be placed on the calendar of July 1, 1958, for the purpose of fixing a future date for trial. This notification by the assistant district attorney took place thirty-eight months after the first indictment (No. 2565-54) last appeared on the Trial Calendar; and twenty-six months after the second and third indictments (Nos. 43-55 45-55) were last on the Trial Calendar. Thereupon defendants made the instant motions to dismiss the indictments. They contend that the prosecution has violated its duty to bring the cases to trial within a reasonable time, that inordinate delay has occurred without defendants' consent or acquiescence, and that they have been deprived of their right to a speedy trial.

The guarantee of a speedy trial is embodied in the Sixth Amendment to the United States Constitution and in the constitutions of many states. In our own state it is contained in section 8 of the Code of Criminal Procedure and has been part of our statutory law for almost a century. That section declares: 'In a criminal action the defendant is entitled * * * to a speedy and public trial.' The same guarantee is reiterated in section 12 of the Civil Rights Law.

The remedy by which a defendant may enforce his right to a speedy trial is given by section 668 of the Code of Criminal Procedure, which provides: '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.'

So important a matter as dismissing an indictment because of undue delay in bringing the case on for trial calls for the exercise of extreme caution. It necessitates a decision consonant with competing right of equal importance. Concededly, defendants' right to a speedy trial is not absolute and unyielding, regardless of the circumstances causing the delay. The People's right to effective enforcement of the criminal law requires that allowance be made for a reasonable time to prepare for trial and for reasonable accommodation to the pressures and needs of those charged with the duty of administering the law. And, of course, no defendant has a right to complain of delay attributable to his own conduct. His right to a speedy trial is deemed waived if he delays the prosecution by dilatory pleas or motions (People v. Lanigan, 22 Cal.2d 569, 140 P.2d 24, 148 A.L.R. 176) or if he consents to or fails to object to a postponement sought by the district attorney (People v. Prosser, 309 N.Y. 353, 360, 130 N.E.2d 891, 896, 57 A.L.R.2d 295; People v. White, 2 N.Y.2d 220, 159 N.Y.S.2d 168; People v. Godwin, 2 A.D.2d 846, 158 N.Y.S.2d 783, affirmed 2 N.Y.2d 891, 161 N.Y.S.2d 145).

On the other hand, a waiver of the right to a speedy trial is not to be lightly inferred from equivocal circumstances. The wrong and the harm that may result from undue delay in the prosecution of a criminal charge are sufficiently serious (People v. Prosser, supra, 309 N.Y. at pages 356-357, 130 N.E.2d 893-894) to require evidence from which a waiver or acquiescence in such delay may reasonably be inferred. Absent such evidence, we may not presume acquiescence in the loss of fundamental rights (Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461; Taylor v. United States, 98 U.S.App.D.C. 183, 283 F.2d 259, 261; Petition of Provoo, D.C., 17 F.R.D. 183, affirmed 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761).

It should also be noted that there is no rigid formula by which to determine what constitutes undue delay or 'good cause' for such dalay. Each case must necessarily be examined in the light of its particular facts. 'The inquiry in each case is factual' (People v. Prosser, supra, 309 N.Y. at page 360, 130 N.E.2d at page 896).

Briefly stated, the district attorney's position in resisting defendant's motions is (1) that there has been no undue delay in bringing the defendants to trial, (2) that on April 4, 1956, the defendants consented that all three cases be marked off the calendar with the understanding that they would be tried at some future time, (3) that there was 'good cause' for the delay of over two years that followed thereafter, (4) that under the law 'A defendant's silence and failure to assert his right to an immediate trial will also constitute a waiver,' and (5) that in any event the defendants were not prejudiced by the delay.

It should be noted at the outset that a waiver may not be predicated on the mere failure of the defendants to assert their right to a prompt trial. The important fact to bear in mind is that, under our practice, a defendant is not empowered to bring an indictment on for trial. That power resides exclusively in the hands of the district attorney and carries with it the corresponding obligation to prevent unreasonable delay. Thus, a defendant has no affirmative duty to demand a prompt trial. He has the right to assume that if the district attorney intends to prosecute the indictment, it will be done with reasonable dispatch. The only right given to a defendant is that if there be undue delay, for which he is not chargeable by reason of waiver, acquiescence or other conduct, he may move for a dismissal of the indictment.

Such is the settled law of this state as announced by the Court of Appeals in People v. Prosser, 309 N.Y. 353, at pages 358-359, 130 N.E.2d at page 894, where Judge Fuld, speaking for a unanimous court, said: '* * * the burden of proceeding promptly is on the state, not on the defendant * * *. It is the state which initiates the action, and it is the state which must see that the defendant is arraigned. It is likewise the state which has the duty of seeing that the defendant is speedily brought to trial. And from this if follows that the mere failure of the defendant to take affirmative action to prevent delay may not, without more, be construed or treated as a waiver. The plain language of section 668 unerringly points that conclusion. In effect, it calls for dismissal of an indictment, if its trial is unduly put off, 'unless good cause to the contrary be shown.' As we read the statute, it is incumbent upon the prosecution to establish 'good cause' for its own delay, and not simply the fact that the defendant has failed to demand a trial.'

Turning to the facts, we find that the transcripts of the calendar proceedings coupled with uncontradicted statements in the affidavits submitted in support of defendants' motions negate any inference that defendants waived their right to a speedy trial.

All three cases appeared on the Trial Calendar on April 21, 1955. The affidavits state that a conference was held at the bench, that counsel for the defendant Winter informed the court that he was ready for trial on any day the court might set, asked that an early trial date be fixed and requested to be told which of the three indictments the district attorney intended to try first. In response to the latter request, the assistant district attorney, who was in charge of the prosecution, promised to notify defense counsel within a few days. The minutes merely reflect that there was a conference at the Bench and that thereafter all three cases were put over to May 12, 1955 'for trial in Part Eight.' The statements in the affidavits, however, stand uncontradicted.

It is also uncontradicted that on April 28, 1955, counsel for defendant Winter called the district attorney's office and was told by the assistant in charge, that he had not quite made up his mind which cause he would try first and that counsel would be advised of that at a later date.

Despite the fact that all three cases had been put over until May 12 'for trial in Part Eight,' none of these cases appeared on any Trial Calendar for that day,...