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Court Dismisses Case for Lack of Prosecution

A New York Criminal Lawyer said that the records reflect that the accused allegedly committed the criminal acts charged, and a warrant for his arrest was issued. He was incarcerated in a State Prison, in a different jurisdiction, as a probation violator, he having been previously convicted of burglary and given a suspended sentence. A detainer warrant was filed by the County District Attorney with the authorities at the State Prison, 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 County Grand Jury. Some time, the County Police Department was notified by the authorities that he would be released the following month. Later, the accused, after first refusing to do so, waived extradition and was returned to New York.

A New York Burglary Lawyer said he moved under sections 667 and 668 of the Code of Criminal Procedure in the County Court to dismiss the indictment. The motion was granted under section 668 in an opinion, but on appeal the Appellate Division, Second Department unanimously reversed the County Court. He 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 he 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.

A Westchester County Criminal Lawyer said the right to a speedy trial is established in New York by statute. Moreover, the United States Supreme Court has held this term that the Sixth Amendment guarantee of a speedy trial is applicable to the States. 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.

The People offer as justification for the post-indictment delay the fact that the accused was imprisoned in another jurisdiction for a nine-month period after the New York indictment. However, the County authorities failed to take any steps to secure the release of the accused 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 other State 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 the other jurisdiction had evidenced any intent to treat a request for extradition unfavorably.’

A Suffolk County Criminal Lawyer said it is settled that delay in bringing a defendant to trial after indictment is not excused because he is a prisoner elsewhere in New York. Similarly, it is now familiar law that a post-indictment delay is not justified solely because he is a Federal prisoner. The rationale for this rule is that a procedure exists for securing the release of a Federal prisoner for trial on State charges. A Federal statute 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 People argue that there is no comparable to the other jurisdiction statute, and that, therefore a request for release of accused before his sentence was completed would have had a dubious result. Much reliance is placed on the fact that the other State is not a party to the uniform Agreement on Detainers, providing for automatic release of prisoners for prosecution in another State. This argument, however, overlooks the fact that the other jurisdiction, like New York, makes provision for transfer of defendants to other States in the discretion of the Governor. Moreover, it is likely that all State Governors have discretionary power to release prisoners upon the request of another sovereign.

Substantial legal distinction cannot be drawn between the power vested in the Attorney General of the United States by Federal statute and the discretion enjoyed by the Governor 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.

From a constitutional aspect, it appears that the four and a half years’ delay in prosecuting the accused prior to his indictment, but after the initiation of criminal proceedings, deprived him of due process of law. Prior to the Klopfer decision, it was established that a State denies him due process of law if it unreasonably delays his prosecution, after the initiation of criminal proceedings. It may be that this doctrine has now been incorporated in the ‘speedy trial’ guarantee of the Sixth Amendment pursuant to the Klopfer rule; but it is only of limited analytical importance whether the right is one of a ‘speedy trial’ or of ‘due process of law’. In either event, this delay of four and a half years, which is unjustified and is explained only by his imprisonment in another State, is unreasonable, since no effort was made to secure his release or transfer.

Section 667 mandates speedy indictment, after ‘a person has been held to answer for a crime’, but under the rule in the Saccenti case, delay is cured by the return of an indictment prior to determination of the motion. Section 668 mandates a speedy trial after indictment. Neither section, therefore, is applicable to the problem involved in this case. Instead, the failure here is to prosecute by whatever further proceedings are indicated after the initiation of criminal proceedings. Accordingly, the order of the Appellate Division should be reversed, and the motion to dismiss granted.

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