People v. Wynn

• Decision Date: 30 January 1980
• Citation: 102 Misc.2d 785,424 N.Y.S.2d 664
• Parties: The PEOPLE of the State of New York v. Harry J. WYNN, Defendant.
• Court: New York Supreme Court

Page 664

424 N.Y.S.2d 664

102 Misc.2d 785

The PEOPLE of the State of New York v. Harry J. WYNN, Defendant.

Supreme Court, Trial Term, New York County, Part 39.

Jan. 30, 1980.

Robert M. Morgenthau, Dist. Atty., for plaintiff (Kenneth R. Schachter, Asst. Dist. Atty., of counsel).

Lawrence Fagenson, New York City, for defendant.

SHIRLEY R. LEVITTAN, Justice:

The issue before the court is whether, after arrest without indictment, a delay in arraignment resulting primarily from a procedure recently employed in the Criminal Court of the City of New York for the budgetary convenience of that city's fiscally embarrassed police department, known as "pre-arraignment," constitutes "Unnecessary " delay within the meaning of CPL §§ 120.90, 140.20 which mandate arraignment "without unnecessary delay," when during such delay the accused, absent counsel, which he waived during the period of delay, makes inculpatory statements.

THE LEGAL BACKGROUND

Although after Indictment an accused must be arraigned within a reasonable time (CPL 210.10; People v. Jones, 1968, Sup Ct, Queens County, 56 Misc.2d 884, 290 N.Y.S.2d 771), the rule is more stringent While there is the aforesaid distinction between the permissible duration of delay awaiting arraignment after indictment on the one hand, or arrest without indictment on the other hand, that distinction has no reference to the quality of such rights as the accused may have while awaiting arraignment, such as freedom from interrogation without counsel where the right to counsel had not been waived. He has that right whether after indictment (Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 reversing 4 N.Y.2d 256, 173 N.Y.S.2d 793, 150 N.E.2d 226; People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825), or after arraignment following arrest but not indictment, since arraignment after arrest must be deemed the first stage of a criminal proceeding (People v. Meyer, 1962, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103; People v. Weston, 1973, 4th Dept., 41 A.D.2d 423, 343 N.Y.S.2d 713), or in the courthouse prior to such arraignment when it was "imminent," "about to take place" and "while . . . waiting for their cases to be called" (People v. Richardson, 1966, 1st Dept., 25 A.D.2d 221, 268 N.Y.S.2d 419), or where the arraignment is Delayed for the specific purpose of generating sufficient time to elicit an exculpatory statement or continue or complete it if commenced prior to the period of delay, whether in the courthouse (People v. Turchiarelli, 1966, 4th Dept.), 26 A.D.2d 898, 274 N.Y.S.2d 613), or even during custody in police headquarters after booking on the police blotter, the proceeding have passed the investigatory stage and having reached the accusatory level (People v. Veitch, 1966, 4th Dept., 26 A.D.2d 764, 271 N.Y.S.2d 729).

following arrest without indictment, requiring arraignment "without unnecessary delay" (CPL 120.90, 140.20; People v. Jones, supra). However, violation of that right does not warrant dismissal of the indictment if no facts are shown establishing that during the period of unnecessary delay there has been no loss or diminution of or any prejudice to any rights of the defendant, Id., such as, for example, extraction of a confession or admissions from the defendant (or, perhaps, an attempt at such extraction), or coercion or threat during detention (People v. McCray, 1970, County Ct., Rockland County, 63 Misc.2d 803, 313 N.Y.S.2d 772; People v. Johnson, 1969, County Ct., Rockland County, 63 Misc.2d 800, 313 N.Y.S.2d 768).

Clearly, delay of arraignment for no other purpose than to gain time to procure inculpatory statements in the absence of unwaived counsel, is "unnecessary" delay (People v. Veitch, supra ; see also United States v. Middleton, 1965, 2d Cir., 344 F.2d 78; United States v. Klapholtz, 1956, 2d Cir., 230 F.2d 494; McFarlane v. United States, 1964, U.S.Dist.Ct., S.D.N.Y., 231 F.Supp. 191 (Weinfeld, J.). While in Veitch, supra, the arraignment was delayed in order to gain time to procure the statement, in Turchiarelli, supra, the defendant at least commenced the statement during a necessary period of delay in the Town Hall attributable to an innocent cause, namely, time awaiting arrival of the justice, but during the course of the statements he was taken to the police station where interrogation was continued, and he was not arraigned until after it was completed; and the statement was suppressed.

In the prosecution at bar there is no doubt that oral inculpatory statements were made by the accused to the assistant district attorney, reduced to writing by the assistant district attorney, and signed by the accused in the courthouse, more than twenty-one hours after arrest, prior to arraignment, and after the defendant had signed his name to a printed form of Miranda warnings containing what fairly may be construed as a literal waiver of counsel handwritten by the assistant district attorney for the purposes of interrogation prior to arraignment. There remains the issue whether, notwithstanding the literal waiver of counsel, both the waiver and the confession are vulnerable to suppression because procured during a period of unnecessary delay in arraignment, retarded either intentionally in order to procure the confession, or as a result of the "pre-arraignment" The court supposes that the prosecutor May have delayed the arraignment by conducting the interrogation, in which case he May have done so knowingly or intentionally, but that these possibilities are too obscure to enable the court to find whether the prosecutor did, in fact, delay the arraignment, or whether, if he did, he did so intentionally. The reason for the obscurity is that the arraignment might, in any event, have been delayed beyond the period of interrogation even if the latter had not occurred, so that, regardless of the prosecutor's intent, the interrogation would not have been the cause of the delay. In fact, the arraignment did not occur until about another 271/2 hours after the interrogation was completed, but also could conceivably have occurred during the period of interrogation if the defendant had not been removed from the courtroom detention "pen" for the purpose of the interrogation. Confronted with this obscurity, the court cannot avoid consideration of the issue whether "pre-arraignment" contributed unnecessary delay without which the waiver of counsel and confession could not have occurred; and, if so, whether the confession is suppressible by reason of a courthouse procedure tolerated by the court itself.

procedure. It is the defendant's argument that neither the confession nor the waiver of counsel would or could have occurred if the defendant had been arraigned without unnecessary delay; that at first the "pre-arraignment" procedure generated the time and opportunity for the waiver and confession; and that the prosecutor took advantage of that delay to protract it further in order to utilize it to extract the confession.

PRE-ARRAIGNMENT

The budgetary malnutrition and personnel reduction afflicting the New York City police department have constrained it, understandably, to improvise apparent efficiencies. One conspicuous opportunity is the appearance of the typical arraignment courtroom densely populated with uniformed police officers and plainclothes police or detectives, badges displayed, languishing in the congestion of the arraignment calendar. With managerial technique that might be admired in private industry, the department has sought to eliminate the waste by concentrating the process into a bureaucratic crucible. The arresting or complaining officer, instead of waiting with his prisoner for actual arraignment, delegates the task to a surrogate police officer who so acts for a clientele of them, much as do the familiar attorneys' representative service companies in the city's civil court calendar parts, who relieve busy practicing lawyers from attendance and delay at congested motion and trial calendars. In the process a transfer of information is required, with necessary abbreviation and substantive loss in the translation. Something else is lost.

Although the arresting officer is the defendant's adversary, the law has increasingly imposed upon him matching obligation to safeguard the defendant's rights, E. g., Miranda. The arresting or complaining officer's presence throughout the arraignment has, at least, one such protective consequence. It signals visually and conspicuously the corresponding presence of the defendant in detention, attracting attention to his very existence there. The officer has an interest in completing the defendant's arraignment process in order to complete his own involvement in it, and that interest supplements the defendant's protection. Absent such attendance and attention, the hazard that the detained prisoner may be lost in the bureaucratic apparatus is real (Cf. People v. McCray, supra; People v. Johnson, supra ), with the opportunity for mischief presaged in those cases and materialized in the one at bar. The price of police efficiency is paid by the dilution of judicial control and safeguards. The issue is not whether the entire arraignment system as a whole suffers. In the aggregate, gains and losses may or may not quantitatively offset each other arriving at a net balance. The issue is rather whether the losses are qualitatively justifiable by the gains. The issue is the individual defendant, not the system. An individual prisoner who suffers the loss has not been given his Anglo-American criminal procedure is a system of justice evolved over centuries from origins rooted in a fundamental philosophy processed from experience in our political and social ascent from historical tyrannies. It is a corporal part of our social contract covenanted by the constitution. Subject to the constitution, its organization is the function of the legislature, and, in part, the judiciary. The...