People v Paige

[*1] People v Paige 2005 NY Slip Op 51290(U) Decided on August 5, 2005 Supreme Court, Bronx County Torres, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 5, 2005
Supreme Court, Bronx County

THE PEOPLE OF THE STATE OF NEW YORK

against

JOSEPH PAIGE, Defendant.



24819C - 2005



Robert T. Johnson, District Attorney of Bronx County (Agata DiGiovanni) for the People. John E. Vallely, for the defendant.

Robert E. Torres, J.

On February 1, 2005 defendant Joseph Paige was arrested and on May 9, 2005 he was arraigned and charged with: Assault in the Third Degree ( P.L. § 120.00 [1] ), a class A misdemeanor; and Harassment in the Second Degree ( P.L. § 240.26 [1] ), a violation. The accusatory instrument is dated February 2, 2005.

The defendant has submitted the instant motion which seeks an order granting the following relief:

(1) dismissing the charges pursuant to C.P.L. § 30.30 (1)(b);

(2) for an order, or in the alternative a hearing pursuant to People v. Sandovl,

to determine whether the District Attorney's Office may use prior convictions, bad

acts, or uncharged crimes as evidence in chief, or as impeachment material against

the defendant; (3) for an order directing the District Attorney's Office to turn over any exculpatory evidence in its possession to the defendant, pursuant to Brady v. Maryland;(4) granting leave to make further motions as may be deemed necessary after receipt of additional information pursuant to any disclosure and Article 240 of the C.P.L.

The People oppose defendant's motion.

Motion to Dismiss Pursuant to C.P.L. § 30.30 (1)(b)

Defense counsel argues that since ninety-six days have elapsed between the date of defendant's arrest on February 1, 2005 and May 9, 2005 the date of defendant's arraignment, the [*2]case should be dismissed pursuant to the provisions of C.P.L. § 30.30 (1)(b). Defense counsel

also contends that defendant was in the custody of the State during the entire time and in no way contributed to any of the delay.

C.P.L. §§ 30.20 and 30.30 measure speedy trial time from the time that a criminal action is commenced. C.P.L. §§ 1.20 and 100.05 state that a criminal action commences with the filing of an accusatory instrument. ( See also People v. Lomax, 50 NY2d 351 [ 1980 ] ).

Normally, speedy trial time is calculated from the date of the filing of the accusatory instrument. However, "[u]nder CPL 140.20 (1)[FN1], a police officer, after performing without unnecessary delay the required preliminary police duties, must without unnecessary delay bring a person arrested without a warrant to a local criminal court for arraignment" ( People ex rel. Maxian v. Brown, 77 NY2d 422, 424 [ 1991 ] ).

Indeed, "[o]nce an arrest has been made , the criminal proceeding is deemed to have started and defendant is entitled, constitutionally, to a speedy trial" ( People v. Staley, 41 NY2d 789, 791 [ 1977 ] citing Dillingham v. United States, 423 US 64, 65 [ 1975 ] ). In People v. Collins, 98 AD2d 947, 948 ( 1983 ) the court stated that "in reviewing the alleged abridgement of defendants' constitutional right to a speedy trial pursuant to CPL 30.20, [it] must consider the entire period from arrest to trial to determine whether or not the delay is improper".

The People state in their answering papers that:

"Defendant was arrested on February 1, 2005 for assaulting an employee of Bronx Children's Psychiatric Center, on January 30, 2005. Defendant was a

patient in that facility at the time of the incident. Defendant was taken to the

police precinct where the requisite police paperwork was processed. After the

processing was completed the defendant was released by the arresting officer to

the Bronx Children's Psychiatric Center and was not held for arraignment. [*3]

After speaking with the District Attorney's Office, representatives from the

psychiatric facility arranged for defendant to be escorted to court for

arraignment on May 9, 2005.

........................ Though the complaint was signed [ on February 2, 2005 ],

the People did not file the complaint with the court on that date because the

defendant was not available for arraignment. .................

.................................................[T]he People made attempts to coordinate

with the facility to secure defendant's presence for arraignment. The People deferred commencement of the action in order to coordinate

with the psychiatric facility to have defendant brought to court for arraignment"

[ and that ] they were "eventually successful" in doing so ( Excerpts from the People's

Affirmation in Opposition, pp. 1 - 2 ).

The People provide no explanation as to why the defendant was released by the arresting officer to the Bronx Children's Psychiatric Center without being arraigned. The People neither explain why the defendant was not available for arraignment nor do they explain or document what efforts they made, if any, to ascertain or obtain defendant's availability for arraignment prior to May 9, 2005.

The People cite People v. Singer, 44 NY2d 241, 254 (1978 ) for the proposition that "[w]here, as here, a determination is made to defer the commencement of the prosecution in good faith, a defendant is not deprived of due process of law 'even though the delay may cause some prejudice to the defense'". However, the People have made no showing that the three month delay between the defendant's arrest and the filing of the accusatory instrument was the result of a decision made in good faith.

Moreover, in People v. Singer, 44 NY2d 241 (1978 ) the court vacated the defendant's conviction and remitted the case to the Suffolk County Supreme Court for further proceedings, due to the People's protracted delay in prosecuting defendant. In so doing the Court stated that: "In this State we have never drawn a fine distinction between due process and speedy trial standards. We have long held that 'unreasonable delay in prosecuting a defendant constitutes a denial of due process of law' .........( citations omitted ). An untimely prosecution may be subject to dismissal even though, in the interim, the defendant was not formally accused, restrained or incarcerated for the offense" [ citations omitted ] ( Singer, 44 NY2d at 253 ).

The Court went on to state that:

" Generally, when there has been a protracted delay, certainly over a

period of years, the burden is on the prosecution to establish good cause"

( emphasis added ). .............................................."(i)f commencement of the

action has been delayed for a lengthy period, without good cause, the

defendant may be entitled to a dismissal although there may be no showing

of special prejudice" [ emphasis added, case citations omitted ] ( Singer, 44 NY2d [*4]

at 254 ).

In People v. Wallace, 26 NY2d 371 ( 1976 ) the Court reversed a conviction and

dismissed an indictment where there was an eleven month delay between the rendering of an indictment and defendant's arraignment thereon. The People knew that the defendant was incarcerated in Federal prison and did nothing to secure his release. The Court found that the People failed to meet their burden to establish good cause so as to justify the delay and allow the court in the exercise of its discretion, to sustain the indictment. In view of the fact that the pre-arraignment delay justified a reversal in that case, the Court found that it did not need to reach the question as to whether or not the delay between the date of the crime and the date of the indictment deprived defendant of his constitutional rights.

In People v. Tinelli, 99 AD2d 672 ( 1984 ) the court found that a 183 day delay between February 25, 1980, the date set for a preliminary hearing ( which was four days after the felony complaint was filed ) and August 26, 1980 the date that the Grand Jury filed the indictment with the court, was sufficient grounds to reverse defendant's conviction and dismiss the indictment.

It is clear that the People must not be permitted "to delay the proceeding at will simply by withholding the accusatory instrument" or "to avoid [ their ] duty to timely file an accusatory instrument" ( People v. Stirrup, 91 NY2d 434, 439 [1998] ).

The court notes that the defendant was in the custody of the State during the entire period between the date of his arrest and the date of his arraignment. In view of the fact that the People have failed to set forth any basis upon which a good cause finding could be made, which would excuse the delay, the court finds that the defendant's due process rights as well as his right to a speedy trial have been violated.

On the basis of the foregoing analysis, the court finds that the criminal action in the instant case commenced on February 1, 2005, with the defendant's arrest. The court also finds that a Total of ninety-seven (97) days delay which accrued between the date of defendant's arrest and May 9, 2005, the date that defendant was arraigned, are charged to the People.

Accordingly, the defendant's motion to dismiss pursuant to C.P.L. § 30.30 (1)(b) is granted.

Sandoval, Brady, and Reservation of Rights Motions

In view of the fact that the accusatory instrument has been dismissed these issues are [*5]moot.

This constitutes the opinion, decision, and order of this court.

Date: August 5, 2005

Bronx, New YorkHon. ROBERT E. TORRES, J.S.C.

Footnotes

Footnote 1: C.P.L. § 140.20 (1) provides as follows in relevant part: "Upon arresting a person without a warrant, a police officer, after performing without unnecessary delay all recording, finger-printing and other preliminary police duties required in the particular case, must except as otherwise provided in this section, without unnecessary delay bring the arrested person or cause him to be brought before a local criminal court and file therewith an appropriate accusatory instrument charging him with the offense or offenses in question. ......."