Records reveal that a man was arrested on a charge of Robbery. He was convicted of Robbery in another jurisdiction, after which a prison term of not more than twelve (12) years, but not less than nine (9) years was imposed upon him. He remained in prison until extradited to the present County and he was arraigned upon the instant indictment on April 1st, 1965. The County authorities lodged a detainer warrant for his arrest on the instant charges at the Prison but did not attempt to return him for trial until a period of more than six (6) years. The accused alleges that during his incarceration in another jurisdiction, he was at all times able and willing to stand trial and that he did not waive his right to a speedy trial by any action on his part. Moreover, he alleges that he made efforts to be returned to this State for trial. He further alleges that he wrote four (4) or five (5) letters to the County District Attorney’s Office requesting a trial, but he was informed by that office that he would have to wait until his release from prison to be returned for trial because the other jurisdiction was not a signatory to the Agreement on Detainers.
The record indicates that he was indicted in the County, for the crimes of Robbery, in the First Degree; Grand Larceny, First Degree (2 counts); Grand Larceny, in the Second Degree; and Assault, in the Second Degree; all of which acts were allegedly committed by the accused in concert with three (3) others. Hence a motion by the accused was filed, to dismiss the indictment for want of prosecution, pursuant to Section 668 of the Code of Criminal Procedure.
The court ruled that Section 668 of the Code of Criminal Procedure, in essence, provides that an unreasonable delay in bringing an indictment to trial must result in the dismissal of the said indictment unless the prosecution establishes ‘good cause for the delay’. Since the delay in the instant case has been so long, the fact of its being unreasonable manifestly admits of no controversy. Thus, it would appear that the instant application must be granted unless incarceration in an out-of-state prison constitutes ‘good cause’ for the delay in prosecution.
In an effort to show the existence of ‘good cause’ in the instant case, the affidavit in opposition urges two (2) arguments: 1. North Carolina is not a signatory to the Agreement on Detainers (Code of Criminal Procedure, section 669-b); and 2. The case of People v. Brandfon, held that any incarceration in a foreign state prison constituted ‘good cause’ for a delay in prosecution.
Both the aforesaid contentions were considered by this Criminal Court in People v. Winfrey, wherein it was held that incarceration in a foreign state prison does not, per se, constitute ‘good cause’ for a delay in prosecution. In that case, after reviewing precedent decisional law, this Court pointed out that the burden of bringing an accused to trial is upon the prosecution, and that statutes enabling persons incarcerated in prisons within New York State or other states, which are signatories to the Agreement on Detainers, to request a disposition of criminal charges against them in no way alleviate the prosecution’s burden. In that connection, then, it is irrelevant for present purposes whether or not the accused, himself made efforts to bring the instant indictment of trial, as he has asserted in his unsupported allegations. Moreover, in Winfrey, this Court expressed the opinion that the holding in People v. Brandfon, must be viewed as erroneous in light of the criminal case law, which developed thereafter.
Furthermore, after the Brandfon decision, the Appellate Courts of this State held that incarceration in a Federal penitentiary, whether within or without the State of New York, did not constitute good cause for failure to bring a case to trial within the meaning of Section 668, C.C.P. because the prisoners involved therein could have been brought to trial by virtue of a Federal statute, which permits the Attorney General to release Federal prisoners for trial in state courts, if he deems it to be in the public interest. For, these reasons, this Court viewed itself bound to reject the Brandfon decision and to follow the mandate emerging from later cases to the affect that an accused person must be returned from other jurisdictions for trial when there is a statutory device available for effecting that result. Finally, this Court, in Winfrey, pointed out that the extradition statutes of New York and Alabama constituted such a statutory device and concluded that, since the prosecution had made no effort to return the accused for trial, the indictment had to be dismissed. The affidavit in opposition to the instant motion totally fails to demonstrate any reason why this Court erred in rejecting the prosecution’s arguments and, consequently, this Court again rejects these contentions.
As a practical matter, it is possible for New York State authorities to return accused persons to this state for trial from another state jurisdiction by the device of Executive Agreement. For, as a matter of comity, the executive authorities of various states may agree that a prisoner serving a sentence in the asylum state will be surrendered for trial to the demanding state on condition that the said prisoner be returned to the asylum state after trial, without either state waiving jurisdiction over the prisoner. Accordingly, the section of New York’s extradition law empowering the Governor to agree with the executive authority of a foreign state that a person serving a sentence in said foreign state be extradited; be returned for trial and thereafter returned to the other state, is merely a codification of an already existing executive power. In the Court’s view, the failure of the prosecution to make even the slightest effort to effect an Executive Agreement for the return of the accused is fatal to the prosecution’s assertion that ‘good cause’ existed for the delay in prosecuting the instant indictment. On that score, it may be observed, that the allegation that another Assistant District Attorney had ‘communicated’ with the office of the Governor of New York State in an unsuccessful effort to return a co-accused in this case for trial from the same prison where he was incarcerated, is legally inadequate to raise the question of the effect a refusal by one of the governors of the states involved to enter into an Executive Agreement of the type herein under discussion would have upon the rights of an accused. The resolution of that problem must await a proper case. Arson was no issue.
In the instant case, detainer warrant for the arrest of the accused was lodged at another jurisdiction, after which the County authorities made no effort to return him for trial. In view of these facts and for the reasons assigned above, the court ordered that the indictment pending against the him be and is hereby dismissed.
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