The defendant was convicted after trial of criminally selling a dangerous drug in the third degree and cocaine possession in the fourth degree (drug possession). He had been indicted on June 14, 1971 and his case was moved for trial fifteen months later, on September 11, 1972. In the interim he had been convicted of a drug crime in Puerto Rico and since November 26, 1971 had been serving his sentence in the Atlanta Federal Penitentiary. Prior to the voir dire on the trial herein, he moved orally to dismiss the indictment for failure to be accorded a speedy trial
The motion, having been made prior to the commencement of the trial, was timely. The defendant’s incarceration in Atlanta can serve neither as an explanation for the delay nor as an excuse .
The reason for the motion was that the defendant ‘feels one or more of his witnesses may now be unavailable to him’. The defendant’s counsel explained that a male and a female had been indicted with the defendant; that while the male was available as a witness for the defendant, the female had not appeared in court and that there was a bench warrant out for her. A New York Criminal Lawyer said the court, stating that the male was available as a witness and that the female had disappeared before the defendant had demanded a trial, denied the motion.
The issue here is whether the Court’s ruling that a demand for a trial is a prerequisite to a motion to dismiss for failure to provide a speedy trial is correct.
Jurisprudence dictates that no defendant has a duty to bring himself to trial. The prosecutor must satisfy the public’s interest in speedy trials. The defendant’s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.
It is the state which initiates the action and it is the state which must see that the defendant is arraigned. A Suffolk County Criminal Lawyer said it is likewise the state which has the duty of seeing that the defendant is speedily brought to trial. And from this it follows that the mere failure of the defendant to take affirmative action to prevent delay may not, without more, be construed or treated as a waiver’
It also follows that a fifteen month delay cannot be held reasonable only because the defendant’s demand was two months old, and that he was not prejudiced because his witness was missing before the demand was made.
A Westchester County Criminal Lawyer said where the length of the delay is presumptively prejudicial, it should serve to trigger an inquiry in which the conduct of both the prosecution and the defendant is to be weighed with respect to, among other factors, the length of the delay, the reason for it, the defendant’s assertion of his right and the prejudice to him. ‘The length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge’. Bearing in mind that the defendant’s incarceration provides the prosecution with neither an explanation nor an excuse, a fifteen months’ delay for a narcotics selling and possession charge is presumptively prejudicial enough to warrant such an inquiry.
However, a motion to dismiss an indictment under CPL 210.20 must be made upon proper papers and on notice. One made orally and without notice should not be granted. Upon remand, the motion should be renewed on proper papers
The question of the reasonableness of the delay herein was remanded to the trial justice for hearing and determination, the appeal being held in abeyance in the interim.
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