People v Torres
Annotate this CaseDecided on September 13, 2004
Supreme Court, Monroe County
THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v.
against
WILLIAM TORRES, JR., Defendant.
1997-0624
Michael C. Green
Monroe County District Attorney
(Richard Caro Roxin, A.D.A.)
47 South Fitzhugh Street, Suite 832
Rochester, New York 14614, for plaintiff.
Louis P. Pilato, Esq.
183 E. Main Street, Suite 1350
Rochester, New York 14604, for defendant.
Joseph D. Valentino, J.
Defendant stands accused under Indictment # 1997-0624 of Criminal Sale of a Controlled Substance in the First Degree, and Criminal Possession of a Controlled Substance in the Second and Third Degrees. Defendant moved to dismiss the indictment based on untimely prosecution and that the defendant was denied the right to a speedy trial. The People opposed dismissal and argued that defendant expressly waived all speedy trial rights in an agreement defendant entered with the Rochester Police Department and the Monroe County District Attorney's Office on or about March 24, 1997.
BACKGROUND
Defendant was arrested March 17, 1997, and a felony complaint was filed March 18, 1997. Both the People and defendant agree that defendant entered an agreement to cooperate with law enforcement, but disagree upon the terms of the agreement. The People argue that defendant expressly waived all speedy trial rights in the agreement, however, the People have no written proof [*2]of that assertion. Significantly, the People informed the Court that they do not have a copy of the agreement and cannot locate a copy. The People provided their only indication of an agreement, which consists of a paralegal's handwritten note containing the names of defendant, prosecutor at that time, defense counsel at that time, and the notations "K= 3/24/97" and "7/10/97 term unsuccess." Importantly, nowhere in the handwritten note is there an express waiver of defendant's speedy trial rights.
Defendant denies that he waived any speedy trial rights in the agreement with law enforcement. Also, defendant maintains that he fulfilled his agreement to cooperate with law enforcement. The People claim that the agreement was terminated at the latest on July 10, 1997, based on defendant's failure to perform.
The People, in compliance with CPL 190.50 (5), informed defendant's former counsel in a letter dated July 2, 1997, that the case would be presented to the Grand Jury on July 31, 1997. The indictment against defendant was filed October 2, 1997.
On October 9, 1997, defendant failed to appear for his arraignment, and the Court issued a bench warrant. Despite the issuance of a bench warrant, there is no evidence before this Court that any attempts were made to locate defendant. Defendant was arrested in April 2004 in connection with other charges, and at that time, the People discovered the unresolved charges. Also, during the nearly seven years since the bench warrant was issued, defendant appeared in Monroe County Family Court and Rochester City Court. Defendant states that he was in the jurisdiction the entire time. The People claim that apparently the bench warrant was not processed by court staff because the Monroe County Sheriff's Office Warrant Squad was not notified of the Court's action and that this failure cannot be imputed to the People (People v Rivera, 160 AD2d 234; People v Conrad, 93 Misc2d 655, affd 44 NY2d 863).
DISCUSSION
CPL 30.30 requires that the prosecution declare readiness within the statutorily prescribed time period, which is six months from commencement, unless an exclusion applies (see, CPL 30.30 [1] [a]; [4] [a]-[j]). "[A]rguably, a defendant may implicitly waive his right to a speedy trial by requesting or expressly acquiescing in a delay of the proceeding (People v Moulton, 172 AD2d 1001, 1001 citing People v Friscia, 70 AD2d 709; People v Panarella, 50 AD2d 304, 306). Where such a waiver occurs as a result of an agreement to cooperate with law enforcement, the delay in prosecution may constitute "exceptional circumstances" within the meaning of CPL 30.30 (4) (g) and be excluded from the time within which the People must be ready for trial (see, People v Friscia, supra). However, where the People are unable to establish a waiver, the delay in prosecution is chargeable to the People (see, People v Moulton, supra). In Moulton, defendant's speedy trial motion was granted after the People failed to establish that defendant waived his speedy trial rights. The People had alleged that the defendant's attorney requested that the charges be "put on hold" pending defendant's cooperation with police, which defense counsel denied (see, id.). The Court found no waiver under these facts (id.).
Here, the People asserted the existence of a written agreement with an express waiver of all speedy trial rights, but they are unable to produce the agreement. Moreover, the note which memorializes the agreement does not contain a reference to a waiver. As such, the People have not established and cannot establish defendant's waiver of his speedy trial rights (see, People v Moulton, [*3]supra). Therefore, the period of time from March 24, 1997 to July 10, 1997, is not excluded from the time within which the People must be ready for trial.
In addition to a waiver, the defendant's absence or unavailability may also constitute an excludable period (CPL 30.30 [4] [c]). The prosecution bears the burden of proving a defendant's absence or unavailability (People v Berkowitz, 50 NY2d 333; People v Roy, 102 AD2d 876). To establish a defendant's unavailability, the People must demonstrate due diligence to produce the defendant (People v Roy, supra; see, People v Bolden, 81 NY2d 146; People v Walter, __ AD3d ___, 778 NY2d 642 [June 14, 2004]).
The People acknowledge that no efforts were made to locate defendant on the outstanding bench warrant. It is not disputed that defendant was in the jurisdiction the entire time. Accordingly, the Court concludes that the People failed to show that defendant was unavailable for approximately the past seven years. As such this time period is not excludable.
The within action was commenced with the filing of the felony complaint on March 18, 1997. Pursuant to People v Stiles, 70 NY2d 765, and People v Smith, 1 AD3d 955, lv denied 1 NY3d 634, the date that an action is commenced is excludable from the speedy trial time period. Accordingly, the six-month period for the People to announce their readiness for trial extended to September 19, 1997. The indictment was filed October 2, 1997, well beyond the six-month statutory period, which expired September 19, 1997. Since this period exceeds the statutory six-month period and the People have not shown entitlement to excludable time by defendant's waiver of speedy trial rights or his absence from the jurisdiction, defendant is entitled to dismissal of the indictment. Defendant's motion to dismiss the indictment upon violation of his statutory speedy trial rights is granted (see, People v Moulton, supra).
Defendant also asserted that he is entitled to dismissal of the indictment based on violation of his State and Federal constitutional right to a speedy trial. Defendant claimed that even if there was no violation of his statutory right to a speedy trial, dismissal is still warranted upon violation of his constitutional right to a speedy trial.
"The following factors should be examined in balancing the merits of an assertion that there has been a denial of defendant's right to a speedy trial: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay." (People v Taranovich, 37 NY2d 442, 445).
This Court has considered the following factors:
1)The delay is nearly seven years since the indictment was filed. The delay is extensive.
2)The People have offered as the reason for the delay that the court staff apparently failed to process the warrant correctly.
3)The most serious underlying charge is an A-1 felony.
4)The defendant was not incarcerated until he was arrested in connection with charges filed in 2004. Bail was set in the amount of $100,000 cash or bond. The period of pretrial incarceration has not been an extended period.
5)There are indications that the defense has been impaired by reason of the delay. Specifically, evidence, in terms of the agreement between defendant and law enforcement, has been lost. Defendant contended that he fulfilled his agreement to [*4]cooperate with law enforcement and he expected that his prosecution had ended pursuant to the terms of the agreement. The agreement is key evidence for the defendant and its absence impairs his defense. Importantly, where the People fail to show good cause for a delay of great magnitude between the defendant's arrest and the trial, defendant need not show prejudice (see, People v Staley, 41 NY2d 789, 792; People v Charles, 180 AD2d 868, 871-872).
Accordingly, upon examination of the Taranovich factors, the Court also concludes that defendant is entitled to dismissal of the indictment for violation of his constitutional right to a speedy trial.
Accordingly, defendant's motion is granted. It is hereby ordered that the indictment is dismissed.
The above constitutes the Decision and Order of this Court.
Dated:Rochester, New York
September 13, 2004
____________________________________
Hon. Joseph D. Valentino
Justice Supreme Court
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