A Queens Criminal Lawyer said that, while the delay has been extensive, the other factors favor the prosecution. Two bar owners were shot point blank after defendant’s cohort allegedly became enraged over a spilled drink, resulting in second degree murder charges. There was virtually no pretrial incarceration. The defense has not been impaired; to the contrary, defendant has enjoyed significant freedom with no public suspicion attendant upon an untried accusation of crime, and the record does not demonstrate undue prejudice to the defense. Far from giving the People an unfair tactical advantage, the delay here has made the case against defendant more difficult to prove beyond a reasonable doubt. In any event, a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant.
A Queens Criminal Lawyer said that, the Homicide Bureau of the Queens County District Attorney’s Office applied in a written memorandum dated March 25, 1982, for authority to present “the case for Grand Jury consideration of two counts of murder in the second degree. As the foregoing discussion demonstrates, the evidence against defendant at that time was indistinguishable from that against him and only differed from the proof inculpating him in the respect that he was the only one of the three suspects arrested and, following the arrest, put in a lineup and identified as a participant in the shootings by the victim.
The issue in this case is whether the constitutional rights of the defendant have been impaired due to denial of speedy trial.
The Appellate Division’s determination that the People established good cause for the delay in prosecuting the criminal defendant is a mixed question of law and fact for which there is support in the record. This case involves a 1981 vicious double murder in a Queens’s bar, for which no one has yet been prosecuted. Three individuals linked to organized crime were thought to be suspects: defendant. While 20 to 25 people allegedly were in the bar at the time of the murders, virtually all of them denied seeing the crime. Shortly after the murders, the main witness either fled the jurisdiction or hid from the police, refusing to cooperate. Another witness recanted her identification of defendant resulting in dismissal of an criminal indictment against him. Defendant has never been located. The Appellate Division’s inference of witness fear has ample support in the record, placing the good cause issue beyond this Court’s further review.
To Be Cont..
The detectives initially investigating the murder were able to ascertain that the accused named by the bartender. The bartender identified defendant from a high school yearbook photograph and defendant from a mug shot taken on a prior arrest. The FBI furnished two important leads regarding the other defendant: that he frequented a certain social club known as an organized crime hangout, and lived at a specified location with a named girlfriend. The bartender identified defendant from surveillance photographs of a man visiting the social club. The photographs were then shown to the girlfriend on September 30, 1981, who confirmed that they depicted criminal defendant and disclosed that he was actually her husband. She claimed to have no knowledge of defendant’s whereabouts and refused any further cooperation. In addition to the bartender, only one other person present at the Shamrock during the shootings was able to identify all three assailants from any photographs.
In this State, “we have never drawn a fine distinction between due process and speedy trial standards” when dealing with delays in prosecution. Indeed, the factors utilized to determine if a defendant’s rights have been abridged are the same whether the right asserted is a speedy trial right or the due process right to prompt prosecution. Those factors are not simply the extent of the delay but also the reasons for the delay, the nature of the underlying charge, whether there has been an extended period of pretrial incarceration, and whether there is any indication that the defense has been impaired by reason of the delay. Criminal Courts must engage in a sensitive weighing process of the diversified factors in the particular case.
The uncontested evidence at the Singer hearing showed that, no later than September 1981, the police had established defendant’s identity and participation in the April 11, 1981 fatal shootings, at the Shamrock Bar, of the two owners of the bar. The Shamrock bartender had identified all three of the assailants by their nicknames. They had been his patrons when he worked at another neighborhood bar in Queens.
It is also undisputed that, for reasons never revealed during the Singer hearing, the Queens County District Attorney’s Office determined to present the murder charges to the Grand Jury only against defendants. The Grand Jury promptly handed up indictments against them for the Shamrock homicides. Defendant however, was never apprehended and remains at large to this day. The criminal case against him was dismissed on motion of the District Attorney in May 1983, when victim was unable to identify him at a Wade hearing.
Concededly, for the next 14 years there was a total absence of any action by the prosecutor or any other law enforcement authorities toward establishing defendant’s criminal responsibility for the Shamrock murders. Our case law is well-settled with respect to the effect of such inordinate pre-accusatory prosecutorial delay. In contrast to the holdings of the Supreme Court of the United States under the Due Process Clause of the 14th Amendment, we view an unjustified, protracted pre-indictment delay in prosecution, even one far shorter than 14 years, as a deprivation of a defendant’s State constitutional right to due process, without requiring a showing of actual prejudice.
Our settled case law also holds that “where there has been a prolonged delay, we impose a burden on the prosecution to establish good cause”. At the Singer hearing, the thrust of the prosecution’s justifications for the delay was that defendant was in hiding to avoid arrest and that the evidence was insufficient to indict defendant because the Shamrock bartender had not been able to identify defendant and had fled or was in hiding by the time of the May 1983 Wade hearing and dismissal of charges in the criminal case.
Supreme Court rejected all of those contentions. The Court’s findings were well-supported by the evidence at the Singer hearing. In fact, defendant had not absconded. He was seen and photographed at the mobster social club, and observed numerous times after the homicides at another neighborhood bar. Supreme Court specifically found that the bartender was not the witness whose disappearance prompted the prosecution’s dismissal of the indictment against defendant. That, too, was amply supported by evidence at the Singer hearing. The Assistant District Attorney who prosecuted the case in 1982-1983 testified that the witness who fled had never been interviewed by him and did not appear before the Grand Jury. Undisputedly, the bartender had been the key witness before the Grand Jury. Moreover, the detective who had the primary role in the initial investigation of the Shamrock murders testified that, at the time of the Wade hearing and the dismissal of the indictment, he made no attempt to locate the bartender and “wasn’t told to locate him.”
The court held that the order of the Appellate Division should be affirmed.
If you are involved in a similar situation seek the help of a Queens Gun Crime Attorney and Queens Criminal Attorney at Stephen Bilkis and Associates.