In November 1963, the defendant having theretofore pleaded guilty to the crime of attempted robbery in the third degree, unarmed, was sentenced to State Prison for a term of not less than 2 1/2 to 5 years. The defendant filed a notice of appeal from the judgment of conviction.
Thereafter, he moved in the Appellate Division to reverse the criminal judgment of conviction or, in the alternative, to remand the action to the trial court for a hearing to determine whether he was denied due process and his right to a speedy trial. By order, the motion, upon the consent of the district attorney, was granted ‘to the extent of remanding the action to the trial court for a hearing and determination on the issue of appellant’s contention that he was denied due process and his right to a speedy trial.’ In all other respects the motion was denied.
A Kings County Grand Larceny lawyer said that a hearing was held at which it was developed that indictment was filed charging the defendant and two co-defendants with robbery in the first degree, assault in the second degree and grand larceny in the first degree. Thereafter, he was arraigned and pleaded not guilty. The defendant moved for an inspection of the grand jury minutes which was denied by an order. The case was marked off the calendar because of another motion which was then pending and was was adjourned later at the request of the defendant. The case was marked ready and passed subject to the completion of the trial of the defendant and the same co-defendants, upon a robbery indictment in the Supreme Court, Queens County.
The case was again adjourned at the request of the defendant’s counsel who was then engaged in the trial of another case. The defendant testified that his counsel requested that he be transferred from Queens County to the Supreme Court, Kings, for disposition of the indictment pending there; the clerk of the Queens County Supreme Court informed the court that the Supreme Court in Kings County must institute the proceedings to have him brought there; thereafter, he was sentenced in the Supreme Court, Queens County, to a term of 7 1/2 to 10 years and was sent to Prison; later, he learned for the first time that a detainer from Kings County, had been filed at the Prison; He submitted a motion in the Supreme Court, Kings County to dismiss this indictment for lack of prosecution; thereafter, he was notified by the Warden, that the aforesaid detainer had been withdrawn;
The defendant contends ‘there was, therefore, a 14-month delay in affording this defendant a speedy trial as guaranteed to him by section 8 of the Code of Criminal Procedure, as well as Section 668 of the Code’; that he was found able to stand trial when he was returned to the Supreme Court, Queens County,; and that ‘good cause’ has not been shown for the delay in disposing of the indictment until he pleaded guilty as aforesaid.
The district attorney, on the other hand, contends that he is not chargeable with the delay in bringing the defendant to trial. A detainer had been lodged. There was received in evidence a letter from the Superintendent of the State Hospital to Assistant District Attorney, Kings County, which states that as of that date the defendant was still in need of medical attention and confirmed the fact that a warrant was on file at the hospital. The prosecution contends that it had reason to believe that the detainer would be honored and that the district attorney of Kings County would be notified of the defendant’s release from that institution. There was also received in evidence a letter, from the Superintendent of the Hospital.
Section 8, subd. 1, of the Code of Criminal Procedure provides: ‘In a criminal action the defendant is entitled 1. To a speedy and public trial.’
Section 668 of the Code of Criminal Procedure provides: ‘If a defendant, indicted for a crime whose trial has not been postponed upon his application, be not brought to trial at the [50 Misc.2d 681] 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.’
What constitutes a ‘speedy trial’ is not fixed by statute in days or months. It depends upon the circumstances of each particular case and is left to the court to determine whether such important right has been denied to a defendant.
In a case, the court held that it is the duty of the State to see to it that a defendant is granted a speedy trial. ‘It is the State which initiates the action and it is the State which must see that the defendant is arraigned. 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. The plain language of section 668 unerringly points (to) that conclusion. In effect, it calls for dismissal of an indictment, if its trial is unduly put off, ‘unless good cause to the contrary be shown. ”
On the evidence adduced I find that there was delay of 14 months in bringing the defendant to trial upon the indictment herein for which the People have failed to establish good cause. The defendant may not be deemed to have waived his right to a speedy trial by his failure to demand final disposition pursuant to section 669–a of the Code of Criminal Procedure.
In the light of all the circumstances, the court find that the defendant was denied due process and his right to a speedy trial, which was not waived by his plea of guilty.
The speedy disposition of cases is for the benefit of both parties. Here in Stephen Bilkis and Associates, our Kings County Criminal lawyers ensure that the case we handled is in accordance with the time frame mandated by law. Thus, we make it a point that justice is done.