Nassau County Correctional Center...cont

December 18, 2014,

Section 876 Correction Law: Nothing in this article shall be construed to prejudice the eligibility of any prisoner participating in a work release program for the purposes of discretionary reduction of criminal sentence, parole or conditional release.

Section 205.16 Penal Law: A person is guilty of absconding from temporary release in the second degree when having been released from confinement in a correctional institution to participate in a program of work release, he intentionally fails to return to the institution of his confinement at or before the time prescribed for his return.

The necessary prerequisite to the triggering of the tolling provision of PL Section 70.06 is incarceration which, according to Black's Law Dictionary (Fifth Edition) means: imprisonment, confinement in a jail or penitentiary.

Based on the statutory language pertaining to work release programs as found in Sections 870 and 877 of the Correction Law and in Section 205.16 of the Penal Law, this Court finds that during the time the defendant was outside the Nassau County Correctional Center for participation in the Work Release Program, he was not confined or incarcerated.

All of the sections previously noted, unequivocally refer to a person in work release status as having been released from confinement.

In addition, this Court finds that if work release status was considered as confinement, the enactment of Section 876 of the Correction Law, Eligibility for reduction of sentence, parole or conditional release, would have been unnecessary.

While participating in the Work Release Program, the defendant during his work hours was outside the Nassau County Correctional Center and by being continued in the program, demonstrated that he functioned in society in a law abiding manner, thereby exempting such time from the tolling provision of PL Section 70.06.

In computing the time which this Court finds to be exempt from the tolling provision, this Court has determined that the criminal defendant, between July 30, 1986 and November 9, 1986, was released for an eleven hour period on each of seventy-three (73) different days.

Accordingly, this Court finds that eight hundred and three (803) hours, which transposes to thirty-three (33) days and eleven (11) hours, are exempt from the tolling provision.

Thus, the extension of the defendant's ten year Second Felony exposure terminated on October 7, 1986 which date is twenty (20) days prior to the commission of the present offense.
Therefore, this Court finds that the defendant has not been subjected to a predicate felony conviction for purposes of enhancing punishment for the present offense.

Nassau County Correctional Center

December 17, 2014,

A hearing was ordered and held by this Criminal Court, at which time between the District Attorney and the defendant's attorney, the following stipulation was entered into as to the undisputed facts:

The defendant was sentenced on his prior felonies on June 9, 1976 to a term of incarceration of one year at the Nassau County Correctional Center. He began his incarceration that day and he was imprisoned at the Correctional Center until November 9, 1976. In the interim, on July 30, 1976 he began participation in the Work Release Program. During the day, he reported to a job and after work, he reported back to the Correctional Center, wherein he was incarcerated. The present offense for which he now stands convicted, occurred on October 27, 1986.
Pursuant to CPL Section 400.21, subdivision 7, paragraph (a), the burden of proof is upon the People and a finding that the defendant has been subjected to a predicate felony conviction must be based upon proof beyond a reasonable doubt by evidence admissible under the rules applicable to a trial of the issues of guilt.

In making its determination as to whether or not Work Release Program time is excluded from the tolling provision of PL 70.06, this Criminal Court has examined the language of the following statutes pertaining to work release programs:

Section 870 Correction Law: The sheriff may establish a work release program pursuant to which prisoners, sentenced to and confined in any county jail under his jurisdiction, may be granted the privilege of leaving confinement for the purpose of working at gainful employment.

Section 877 Correction Law: while released from the jail of confinement pursuant to the terms of any work release plan, when a prisoner is employed by the state or a local municipality, his relationship to the state or local municipality arising out of such employment shall be determined in the same manner as if he were a free person so employed.

To Be Cont...

Nassau County Correctional Center

December 16, 2014,

The defendant, following trial before a jury, stands convicted of the crime of Burglary in the third Degree. The People have filed against the defendant a Second Felony Offender Statement pursuant to CPL 400.21, alleging previous felony convictions on June 9, 1976 for the crimes of Grand Larceny in the Third Degree and an Attempt to Commit the Crime of Burglary in the Third Degree, Class E Felonies.

For the purpose of determining whether a prior conviction is a predicate felony under PL Section 70.06, the sentence must have been imposed not more than ten years before the commission of the present offense.

As the present offense occurred on October 27, 1986, which is clearly more than ten years after the defendant's predicate criminal felony conviction of June 9, 1976, the People rely on the tolling provision of the statute.

Accordingly, in calculating the ten year period any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present criminal felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration.

The defendant, on his June 9, 1976 conviction, received a sentence of one year incarceration at the Nassau County Correctional Center, which, with discretionary reduction of sentence, ended on November 9, 1976. The tolling provision, if applicable, would extend the ten year period to November 9, 1986, and make the defendant a Second Felony Offender by fourteen (14) days.
The defendant contests his second felony offender status and raises a question of law which appears to be of novel impression.

After having commenced service of his June 9, 1976 one year sentence at the Nassau County Correctional Center, the defendant from July 30, 1976 to November 9, 1976 participated in the Work Release Program. And, the defendant maintains that the time period spent in the Work Release Program is more appropriately characterized as time in society at large, and, as such, should not toll the statutory ten year period under CPL Section 70.06.

To Be Cont...

Continue reading "Nassau County Correctional Center" »

People v. Davidson (35 N.Y.2d 227)

December 14, 2014,

THE COURT: Well now, Mr. D, if monies were not paid to the banks and the banks did not tell the Probation Department that they had received certain monies from the criminal defendants; I would take these into consideration, the payments into consideration in imposing my sentence.
MR. D: Yes, sir.

THE COURT: Because I had told counsel here, prior to the time when it was their idea that some monies would be paid to the three banks that were involved here, that I was about to send the criminal defendants to jail. I have since that time told both counsels here that if they paid to the bank what the bank will accept, what the banks will accept, that I will not send them to jail, but I will place them on probation. Without the payments to the bank I was about to send these two persons to jail. I will take that into consideration in imposing sentence, and so that counsel here will know what I expect to do on the day of sentence. If I receive the report by the Probation Department that the banks have received monies by the way, how much money would that be?

The court then engaged in extensive colloquy with the attorney for the defendant as to how much money would be paid to the three banks and the Attorney-General.

During this discussion the court stated that what the two defendants will be paying here is roughly $56,000. Further discussion ensued between the court and defendant's counsel as to the time when payment had to be made.

The court stated that it does not want it that way and it insists that all monies be paid before it impose sentence.

On July 21, 1975, prior to the imposition of sentence, defendant's attorney made an application to withdraw the defendant's plea of guilty which the court summarily denied. At that time defendant's attorney stated: “Now with regard to the contemplated restitution, your Honor also knows this. That as far as defendant is concerned; he has been ready, willing and able in view of the fact that he's mortgaged his house to make his portion of the restitution. And accordingly I respectfully request that he be severed in this action from the joint defendant. The Court denied said request.

Before sentence was imposed, the codefendant SL stated, in part, as follows: "This was a business venture that went bad. There was talk of restitution but since everything that has occurred, all the incidents that have occurred here have drained me financially, mentally, and I am just in no position at this point to make the kind of restitution that they are asking for. We have both talked it over. We are willing to make some restitution to stay out of jail. But the kind of figures that they are talking about we just can't come up with."

The court made no comment concerning defendant's attempt to make restitution but merely proceeded and imposed sentence upon him and his codefendant.

There is sufficient evidence in the record to justify a hearing on the application for post-judgment relief. The questions to be determined at the hearing are what the full terms and conditions of the promise where and when the promise was made before or after the defendant entered his plea of guilty.

Furthermore, another question to be resolved at the burglary hearing is whether at the meeting in the office of the Judge's law secretary held prior to the entry of the guilty plea for the purpose of discussing disposition of the case, attended by the Judge's law secretary, the Assistant District Attorney, defendant's counsel and the two lawyers representing the two codefendants, the Judge's law secretary purported to make a promise as to sentence, as agent for the Judge, as well as whether the court authorized him to make such promise.

Under the circumstances of this case, a hearing is required in order to determine the validity of defendant's allegation of an off-the-record promise of probation. Hence, Order reversed, on the law, and proceeding remitted to the County Court for a hearing and a new determination in accordance herewith, to be held before a Judge other than the one who presided at the time the plea of guilty was accepted and sentence was imposed.

People v. Davidson (35 N.Y.2d 227)

December 13, 2014,

The criminal defendant appeals from an order which denied, without a hearing, his application to vacate a judgment of the same court, rendered July 21, 1975, which convicted him of grand larceny in the third degree, upon his plea of guilty, and sentenced him to an indeterminate term of imprisonment not to exceed three years.

The trial court erred in denying, without a hearing, criminal defendant's motion to vacate the judgment. The appeal from the judgment, which was affirmed, concerned only matters in the record. The issue on this appeal concerns matters dehors the record. Consequently, it was error to hold that the instant issue on appeal was raised and already resolved against the defendant on the appeal from the judgment.

The court, in denying the motion, further erred in basing its decision on People v. Davidson (35 N.Y.2d 227). The Davidson case is clearly distinguishable since it involved a patently incredible allegation which was flatly contradicted by the record. Furthermore, in Davidson, the Judge who allegedly made the off-the-record promise was deceased at the time of the second coramnobis application. In the instant appeal the record does not contradict the allegation of an off-the-record promise; nor can it be said that the allegation is incredible as a matter of law.

In support of his application to vacate the judgment the defendant submitted an affidavit from his attorney, which stated that, prior to the defendant's pleading guilty, a conference was held in the office of the Judge's law secretary which was attended by the law secretary, an Assistant District Attorney, defendant's attorney and two attorneys who represented two codefendants. That the purpose of the meeting was to discuss disposition of the case; that he agreed to recommend a plea of guilty to a felony count on the condition that it be a Serrano plea and that a jail sentence not be imposed upon the defendant; that it was at this point that the law secretary, AB, made certain inquiries and then said that he saw no reason why Judge LP would impose a jail sentence in this case since it was not a crime of violence or a burglary, but arose out of business.

Also submitted in support of the defendant's motion was an affidavit executed by the attorney for the codefendant, SL, which corroborated, in substance, the statements made by defendant's attorney.

On January 13, 1975 the defendant pleaded guilty. On April 14, 1975 defendant and his attorney appeared in court and requested an adjournment, the attorney stating that he had been negotiating with the Attorney-General and also with the attorneys for the three banks that had sustained losses in an attempt to make restitution. The court granted the adjournment.

On April 21, 1975 the parties appeared for sentencing but imposition of sentence was adjourned. On that day the following colloquy occurred between the court and Mr. D of the First National City Bank:

To Be Cont...

Continue reading "People v. Davidson (35 N.Y.2d 227)" »

People v. Olah (300 N.Y. 96)

December 12, 2014,

Defendant moves for re-sentence of a 1964 conviction in this Court. The sentence in question was ten to fifteen years in Prison for Grand Larceny, first degree, as a third felony offender. He contends that his two prior cnvictions (both in Washington, D.C.) do not constitute criminal felonies under Sec. 1941 of the Penal Law, which in effect provides that a court may sentence a defendant as a multiple offender if the previous crimes committed by the defendant in a foreign jurisdiction would constitute felonies if committed in New York. His moving papers and memorandum of law show extensive research and his contentions are fortified with numerous citations of authority.

It appears that in April, 1946, criminal defendant was convicted of Robbery in the Second Degree, after trial in the District Court, District of Columbia, and sentenced to a term of from two to six years in prison. Again, in 1956, in the same court, upon his plea of guilty to Attempted Robbery, he was sentenced to prison for a term of from one to three years. Defendant contends, however, that the statutes under which he was convicted in the District of Columbia are not proper multiple offender predicates since the said sections define as robbery, acts, which if committed in New York would not be considered felonies.

Defendant argues that since Sec. 22-2901 provides that a robbery may be committed in the District of Columbia by 'stealth' but without force that they are not crimes which, if committed within this state, would be a felony and therefore are not a proper basis for sentencing as a third felony offender.

While it is true that the stealth type robbery in the District of Columbia statute was intended to cover pickpockets, the operative part of the indictment and gravamen of the crime is the taking by force or by stealth from the person. It is true that People v. Olah (300 N.Y. 96), holds that if the crime as defined in the foreign state is less than a felony if committed in New York, it may not be considered a sufficient basis for a multiple felony sentence. But the taking by stealth from the person of the victim is a crime which if committed in New York is a felony.
In People v. Oliver (19 Misc.2d 113), the Court said: Thus, the crime of robbery as set forth in the second portion of the Georgia statute and the second count of the indictment, although it may not be equivalent to New York's crime of robbery, involves, as does § 1296 of the Penal Law, a wrongful taking of property from the person of another and, consequently forms a proper basis for multiple offender punishment in New York. It is not necessary that the foreign crime be the same as the New York felony.

An examination of the record indicates that defendant was convicted in 1946 and that the District of Columbia jury found the defendant guilty of the offense charged in the indictment. The offense charged in the indictment was that the defendant by force and violence and against resistance and by putting in fear and by sudden and stealthy seizure and snatching, feloniously did steal, take and carry away, from and off the person of one, etc. Thus there is a conviction of the defendant for a crime which in New York may be considered a felony.

Similarly, in 1956 the defendant, upon his plea of guilty to the crime of Attempted Robbery, as previously defined, was sentenced to jail. This Court have already indicated in this opinion that robbery as defined in the District of Columbia statutes would be a felony if committed in this jurisdiction. Hence, the motion by defendant for re-sentence is denied.

Continue reading "People v. Olah (300 N.Y. 96)" »

BOCES Educational Administrators Association

December 11, 2014,

In this criminal proceeding and action, the petitioner seeks to compel the Nassau County Board of Cooperative Educational Services (hereinafter BOCES) to pay her, pursuant to a collective bargaining agreement between BOCES and the BOCES Educational Administrators Association, the sum of $16,768, representing the cash value of a 40-day vacation leave balance, and pursuant to a 2004 amendment to the collective bargaining agreement, the sum of $14,252.80, representing the cash value of a 34-day vested bank vacation leave balance.

BOCES moved to dismiss the combined petition/complaint, arguing that, as a matter of public policy, the petitioner is not entitled to either payment because she pleaded guilty to attempted grand larceny in the second degree for stealing its funds. The Supreme Court agreed with BOCES and dismissed the petition/complaint on the ground that BOCES was within its right to deny the petitioner's request for a lump sum payment representing her unused and vested bank vacation leave in light of her criminal guilty plea.

The petitioner's guilty plea did not warrant dismissal of her petition/complaint. Rather, the express provisions of the collective bargaining agreement must control. The collective bargaining agreement at issue provides that unit members employed on a twelve (12) month basis shall be entitled to twenty-two (22) days of leave with pay per calendar year to be taken as approved by the appropriate department head or his/her designee, consistent with the needs of the agency. Such annual leave shall be earned and may be accumulated from year to year, up to a maximum accumulation of forty (40) days.

Further, a 2004 amendment to the collective bargaining agreement provides that unit members who maintain a vacation day account consisting of more than forty (40) days will be granted a vested bank of vacation days. Upon resignation for purposes of retirement or resignation for purposes of separation other than a separation “for cause”, the unit member will be paid a cash sum equal to the number of days remaining in the unit member's vested bank of vacation leave days.

Here, the petitioner continues to deny that she diverted funds from BOCES for her own personal use. Nevertheless, she admits that she agreed to resign and plead guilty to attempted grand larceny in the second degree. Paragraph 5 of the 2004 amendment to the collective bargaining agreement gives BOCES the discretion to deny payment for vested bank vacation leave if the employee's separation from BOCES was for cause. Under the circumstances, the petitioner's separation from BOCES was for cause. Accordingly, even assuming the truth of the allegations set forth in the petition/complaint and according the petitioner every favorable inference, as we must at this stage of the proceedings, the petitioner failed to state a claim that BOCES is required to pay her the cash value of her 34-day vested bank vacation balance.
Turning to the petitioner's claim that BOCES must pay her the cash value of her 40-day vacation leave balance, the petition/complaint asserts that the 2004 amendment to the collective bargaining agreement acknowledges a past practice, established for a substantial period of time, in which BOCES pays retiring employees for any unused vacation leave.
Although the collective bargaining agreement itself is ambiguous in that it does not specifically require BOCES to pay retiring employees the cash value of their accumulated vacation leave balances, paragraph 6 of the 2004 amendment to the collective bargaining agreement specifically references such a past practice, and unlike paragraph 5, does not contain a separation for cause element. Under the circumstances, the petition/complaint stated a claim that BOCES pay the petitioner the cash value of her 40-day vacation leave balance.

Continue reading "BOCES Educational Administrators Association" »

Fourth and Fifth Amendment privileges...cont

December 10, 2014,

The people claim, inter alia, that defendants have no standing to challenge the subpoena directed to a third party accountant.

The people also state that any delays in proceeding with the Grand Jury investigation have been caused by plea conferences initiated by criminal defendants. Any argument that the people are on a fishing expedition is countered by the proposition that the purpose of the Grand jury is to investigate whether or not a crime has been committed. It is argued that defendants must demonstrate that the records sought are immaterial and irrelevant to a legitimate objective of the Grand Jury investigation.

The criminal defendants concede in their reply papers that they are not asserting Fourth and Fifth Amendment privileges with respect to the demand for personal tax returns from their accountant but that they have standing to move to modify based upon a privacy interest in their personal tax returns and that those documents don't have any relevance to any legitimate Grand Jury inquiry.

Defendants argue that they have standing to challenge the production of their personal income tax returns by their accountant under a right of privacy. This contention is without merit.
Contrary to defendants' claim, they do not derive any right to privacy from disclosure of their tax returns by a third party accountant under New York State Tax Law § 697(e) or the Federal Tax Reform Act of 1976. Section 697(e) of the Tax Law only prohibits the Tax Commission, any Tax Commissioner, any officer or employee of the Department of Taxation and Finance or any of its agents or any person who inspects or is furnished a copy of a tax return pursuant to Section 697(e) [152 Misc.2d 304] from divulging or disclosing any information contained on the forms. It does not confer any independent right of privacy or confidentiality from disclosure of information contained on an income tax return except as set forth in that section. In the instant case the Grand Jury subpoena was directed at The accountant, defendants' accountant. Therefore, they have no standing to challenge the relevancy of the subpoenaed documents under this section.

Similarly, Section 6103 of Title 26 of the Internal Revenue Code only prohibits the United States Government and those persons who have access to Federal Tax returns from the government pursuant to Section 6103 from disclosing or divulging any tax return or information contained thereon. The defendants' accountant is not, therefore, prohibited by reason of confidentiality or right of privacy under this section from producing defendants' Federal Tax returns in compliance with a Grand Jury subpoena. Forgery was not involved.

Additionally, the Court notes that Section 6103 expressly provides that tax returns are open to inspection to State and local law enforcement agencies.

Since defendants have established no property rights, nor any recognized right of privacy, confidentiality or accountant/client privilege with respect to their personal income tax returns, the Court finds that defendants have no standing to challenge the production of same by their accountant.

Accordingly, defendants' application to modify is denied.

Mr. GM turned out to be just one component

December 9, 2014,

In this case, we are asked whether a three- or six-year statute of limitations applies to causes of action for negligence and breach of fiduciary duty by a school district against a former member of the school board. We hold that the six-year limitations period in CPLR 213(7) is applicable and, therefore, this action was timely commenced.

In September 2002, an accounting firm hired by plaintiff XXX School District discovered irregularities in the district's financial records. An audit revealed that Mr. GM, the assistant superintendent for business, had stolen $223,000 from district accounts. The XXX School District Board of Education (the Board) was notified of Mr. GM's misconduct and it decided to allow Mr. GM to repay the misappropriated funds along with attorney's fees and accounting costs and retire. The Board, however, did not notify law enforcement authorities or state officials about Mr. GM's criminal activities, nor did it publicly disclose her illegal conduct.

Unfortunately, the theft by Mr. GM turned out to be just one component of a long-running conspiracy to loot the school district's coffers. After Mr. GM left her post, information about additional missing funds surfaced and eventually a criminal investigation was undertaken by the Nassau County District Attorney's Office. In June 2004, Mr. GM was arrested for grand larceny in the first degree for stealing more than $1 million from the school district. The investigation also implicated the school district's superintendent (Mr. TX) and an account clerk (Ms. D, who was Mr. GM's niece), and they too were arrested for grand larceny. An extensive forensic audit by the State Comptroller determined that, from 1998 through 2004, approximately $11 million had been misappropriated: Mr. GM had stolen over $4.6 million; Mr. TX had taken more than $2.4 million; and Ms. D had received about $300,000. In total, various sums had been funneled to more than two dozen people.

In addition to the criminal prosecutions that emerged from these investigations, the school district initiated a lawsuit against former and current members of the Board for their allegedly lax management during the years the funds disappeared and their attempt to keep these illegal activities under wraps. Defendant Mrs. QX was a member of the Board for approximately one year, beginning in 2000. Her departure from the Board occurred before Mr. GM's criminal activities came to light. There are no allegations that Mrs. QX knew about the ongoing illegal scheme, benefitted from the theft of the school district's funds or received any portion of the stolen monies. Mrs. QX also did not participate in the Board's decision not to reveal Mr. GM's initial thievery. Mrs. QX was, however, a member of the Board during a time period that funds were being stolen by school district employees.

Mrs. QX moved to dismiss the complaint against her, arguing that the causes of action were time-barred because the school district's claims were subject to the three-year statute of limitations in CPLR 214(4) and the complaint was filed more than three years after she ceased being a school board member.

Causes of action that seek monetary damages for injury to property are generally subject to a three-year statute of limitations extends the limitations period to six years for an action by or on behalf of a corporation against a present or former officer to recover damages for waste or for an injury to property or for an accounting in conjunction therewith. If the specific language of CPLR 213(7) encompasses a particular claim, it supplants the general three-year rule of CPLR 214 (4). The issue here then distills to whether a school district is a corporation within the meaning of CPLR 213(7), thereby providing a six-year statute of limitations for covered claims. We hold that it is.


To Be Cont...

Continue reading "Mr. GM turned out to be just one component" »

People v. Meyer (11 N.Y.2d 162), and People v. Rodriguez (11 N.Y.2d 279)

December 8, 2014,

The defendant appeal the judgment of the County Court, Nassau County, convicting him of murder in the first degree, murder in the second degree, robbery in the first degree, and of grand larceny and assault, and after a jury recommendation, imposing sentence of life imprisonment on the conviction of murder in the first degree.

After the crimes were committed, the defendant fled to California, where he was arrested and searched. Immediately after the arrest, the California police searched and found two revolvers in the automobile which the defendant had rented.

The criminal defendant was interrogated in California, on the plane returning to New York after he had waived extradition, and also in Nassau County before his arraignment there. Some of the statements and confessions made before the defendant left California were made after a New York attorney, who had been retained by the defendant's parents to represent him, communicated with the Nassau County police officials, inquired as to the defendant's whereabouts and informed such officials that he intended to go to California and that he did not want any statements taken from the defendant.

Under the circumstances, it may not be held that the defendant's motion to suppress as evidence the use of the two revolvers found in the automobile, was improperly denied.
This Court finds that, the proceeding in California was not an arraignment within the rules enunciated in People v. Meyer (11 N.Y.2d 162), and People v. Rodriguez (11 N.Y.2d 279), which prohibit post-arraignment interrogation.

It appears that the Nassau County police officials did not intend to permit nor did they permit the attorney to see the defendant until they had completed their interrogations. The police captain who flew to California to extradite the defendant was not advised that an attorney had been retained to represent the defendant; and he interrogated the defendant in California, on the plane to New York and in Nassau County. While the attorney was in police headquarters in Nassau County, in a futile attempt to speak with the defendant who had been returned to Nassau County, the defendant was interrogated by a psychiatrist and by the police captain. After the attorney abandoned his futile attempts to speak with the defendant, an assistant district attorney interrogated the defendant; and the attorney did not see the defendant prior to his arraignment in Nassau County.

In view of the nature of the crime, the developments in California and the fact that at that time People v. Donovan (13 N.Y.2d 148), had not yet been decided, the police officials were not willfully violating the defendant's constitutional and statutory rights by interrogating him after an attorney had been retained to represent him.

But, in the light of the decisional law enunciated in People v. Donovan , the confessions and admissions obtained by the Nassau County police, after the attorney informed the police that he represented the criminal defendant and did not want any statements taken from him, were inadmissible. In our opinion, under said decisions, it was the duty of the police official, with whom the attorney spoke, to communicate with the police officer who was going to or had already left for California, and to advise him that an attorney had been retained to represent the defendant, and that therefore said officer was not to interrogate the defendant.

No separate appeal lies from any intermediate orders, which nevertheless have been reviewed on the appeal from the judgment of conviction. Judgment reversed on the law and a new trial ordered. The findings of fact implicit in the verdict are affirmed.

Continue reading "People v. Meyer (11 N.Y.2d 162), and People v. Rodriguez (11 N.Y.2d 279)" »

Code of Criminal Procedure...cont

December 7, 2014,

In this habeas corpus proceeding, the defendant seeks a dismissal of a pending indictment under the authority of section 669-a of the Code of Criminal Procedure, based on the service of the demand as required in said section and the noncompliance on the part of the People to bring him on for timely trial.

The substance of section 669-a provides that whenever there is pending in this state any untried indictment, information or complaint against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered written notice of his request for a final disposition to be made of the indictment, information or complaint.

It is manifestly apparent in reading section 669-a that its function is to afford a prisoner a speedy trial of untried charges pending against him. This section, which carries with it the provision that a dismissal thereunder is with prejudice to the People and a bar to subsequent indictment, must be strictly construed and, perforce, can apply only to an information of a triable nature. Thus, the notice as sent by the defendant seeking disposition of any untried indictment or information was of little legal significance for at such time there existed no information or indictment which could have been tried. It was not until after the written demand was received by the district attorney that an indictment was handed up by the grand jury.

The defendant's application under section 668 of the Code of Criminal Procedure, however, bears merit.

The defendant was indicted on November 17, 1959. He was not arraigned before the court until May 31, 1960, more than six months after his indictment. The People have failed to explain the delay in bringing defendant to trial at the next term of the court in which the indictment was triable and simply contend that a six-month delay, in and of itself, is not a sufficient basis to afford defendant the relief he seeks. With this proposition, the court cannot agree.

The burden is on the State and not the defendant to see that a defendant is arraigned and speedily brought to trial. The burden, therefore, rests with the district attorney to show good cause for delay and it is presumed that such delay was prejudicial to defendant.

The fact that the defendant was confined to a penal institution in some other part of this state by reason of other convictions does not, standing alone, constitute good cause for depriving him of his right to a speedy trial without bail.

The People having failed to show good cause for the delay in bringing defendant to trial, defendant's motion to dismiss the indictment is granted to the extent only that the within application insofar as it seeks relief under section 668 of the Code of Criminal Procedure is granted. Submit order.

Some circumstance not accounted for in the testimony,...cont

December 7, 2014,


When investigation later developed that the flooring had never been delivered to the Freeport job, the defendant told his employers conflicting stories, namely, that he had in fact delivered it and, conversely, that he had returned it to a bin in the firm's warehouse to which the defendant had a key. Testimony by a member of the Freeport construction firm negatives a delivery of the lumber at Freeport and testimony by a corporate officer of the firm which employed defendant, while something less than precise, is sufficient to negative the fact that the lumber was returned to the bin.

While the circumstances presented are highly suspicious and the criminal defendant's actions cannot be condoned, it is the opinion of this court that they fall short of the quantum of proof necessary to sustain an indictment charging a larceny. Proof of conscious, exclusive and personal possession is absent.The mere receipt on Wednesday of the merchandise for ultimate delivery the following day cannot be said to charge the criminal defendant with recent and exclusive possession. The lumber was left in the yard with the defendant's employer's knowledge; it was seen by the employer some four hours after the defendant left the yard; it was unprotected and available to any thief. The defendant's explanation likewise did not exclude to a moral certainty every other reasonable hypothesis except that of guilt, for indeed there may have been an attempt to cover up a civil liability or dereliction of duty on his part.

Although the facts presented to the Grand Jury establish a strong suspicion implicating the defendant, one cannot be indicted on suspicion alone. Sufficient evidence connecting the defendant with the crime charged must be presented to warrant submission to a trial jury. In People v. Baldiseno, the indictment charging grand larceny was dismissed where it was shown that the defendant was 'with the boys who committed the larceny and that he ran away from the scene of the crime with them on the ground that these facts were insufficient to establish that he aided, abetted or otherwise participated in the crime or that he was their accomplice. The facts in that case are more convincing that those presented here.