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CPL 30.30 subd. 4, par. (c)


These cases are criminal charges of grand larceny presented before the proper courts.

Records reveal that in the first case, an indictment was found for the crime of robbery alleged to have been committed on July 16, 1953, at a Bar and Grill. Two men were arrested and held to await the action of the Grand Jury. It also developed that a third man was also implicated and he was indicted and later dealt with as a Youthful Offender. The first two accused were at that time in custody in connection with another crime. The Grand Jury indicted them, for the crimes of robbery in the first degree, grand larceny in the first degree and assault in the second degree with intent to commit the crimes of robbery and grand larceny.

They now filed a motion to dismiss the indictment against the three on the grounds that these three were not given a speedy and prompt trial, and that any delays were not with the specific consent of the three, pursuant to Section 668 of the Code of Criminal Procedure.

The court held that Section 668 of the Code of Criminal Procedure reads as follows: ‘When a person indicted is not brought to trial at the next term thereafter. If a defendant, indicted for a crime whose trial has not been postponed upon his application, be not brought to trial at the 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.’

The Court of Appeals in People v. Prosser, decided that Section 668 of the Code placed the burden of giving to a defendant a speedy trial upon the State, and that except for good cause shown or delays consented to by the defendant, he was entitled to move for a dismissal of the indictment. In this State the defendant could not move his case for trial, that it was a privilege of the prosecutor.

True these men were confined in correctional institutions of our State, but Section 298-b of the Criminal Code provides the means for bringing such accused before the court for arraignment or trial. A careful reading of the recent decision in the Prosser case would appear to leave no other alternative to this Court, but to grant the motion.

This second case is an appeal by an accused from six judgments of the County Court, convicting him of (1) burglary in the third degree and attempted grand larceny in the third degree, upon a jury verdict, and imposing sentence, (2) burglary in the second degree, on a plea of guilty, and imposing sentence, and (3) four counts of burglary in the third degree, on pleas of guilty, and imposing sentence.

On remand the trial court found that he had pleaded guilty to burglary and grand larceny under. He was subsequently released on a surety bond and directed to appear at a narcotics rehabilitation center for testing. He failed to report to the narcotics center and subsequently did not appear for sentencing on a specified date. His bail was forfeited, and a bench warrant issued. Some time, when the instant indictment was returned, his whereabouts were unknown. Later, he was arrested as a suspect in still another burglary, to which he subsequently pleaded guilty. The inference is inescapable that, in the intervening period, he was “attempting to avoid apprehension” on the first indictments. The pre-arrest delay, therefore, resulted from his ” absence” within the meaning of CPL 30.30 subd. 4, par. (c). As to the delay between arrest and trial, by defense counsel’s own estimation, less than four months was attributable to the District Attorney. At the hearing, he failed to demonstrate that he suffered any prejudice as a result of the pretrial delays. In these circumstances, neither his statutory nor constitutional right to a speedy trial was violated.

We agree with accused that, at the trial on second Indictment, the People failed to prove that the value of the goods that he had attempted to steal exceeded $250. Accordingly, his conviction of attempted grand larceny in the third degree should be reduced to attempted petit larceny. Since he has already served the maximum time to which he could be sentenced on the attempted petit larceny conviction, there is no need to remand for re-sentence.

In cases invovling burglary, murder, assault and the likes, better consult and speak with your legal team. Stephen Bilkis & Associates, with offices throughout New York, offers the services of its Nassau County Criminal Lawyers or its New York Grand Larceny Attorneys.

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