SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
April 22, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JOSEPH SYLVESTER, APPELLANT
Rabin, Munder and Martuscello, JJ., concur; Beldock, P. J., dissents and votes to affirm with the memorandum, in which Benjamin, J., concurs.
In our opinion, the 14-month delay between the time defendant was released from Matteawan and the time he was tried in Kings County denied him due process and his right to a speedy trial under subdivision 1 of section 8 of the Code of Criminal Procedure (see People v. Sylvester, 50 Misc. 2d 677; People v. Mudra, 12 Misc. 2d 438). Since both the District Attorney and the Matteawan officials are agents of the State, the fault of the Matteawan officials in not notifying the District Attorney as to defendant's release should not be charged to the prisoner, but to the State(People v. Masselli, 13 N.Y.2d 1). The State has the duty of seeing that the defendant is speedily brought to trial (People v. Prosser, 309 N. Y. 353, 358-359). The People have failed to establish good cause for the delay (Code Crim. Pro., § 668), and defendant in no manner waived his right to a speedy trial. His failure to demand final disposition of the charges under section 669-a of the Code of Criminal Procedure in no way waived this right (People v. Bryant, 12 N.Y.2d 719; People v. Piscitello, 7 N.Y.2d 387; People v. Segura, 6 N.Y.2d 936), nor did he waive it by pleading guilty(People v. Chirieleison, 3 N.Y.2d 170). Accordingly, the indictment should be dismissed(People v. Piscitello, supra).
Beldock, P. J., dissents and votes to affirm with the following memorandum, in which Benjamin, J., concurs:
The majority is of the opinion that this Kings County indictment, filed September 25, 1959, for robbery in the first degree and related crimes, to which defendant entered a plea of guilty of attempted robbery in the third degree, unarmed, on October 11, 1963, should be dismissed because the delay between August 24, 1962 (when defendant was released from Matteawan State Hospital and remanded to Queens County, for trial on a robbery indictment pending there) and October 11, 1963 denied defendant due process and his right to a speedy trial. It is conceded that the Kings County District Attorney was not notified until January 31, 1963 of defendant's release from Matteawan on August 24, 1962. In our opinion, the delay between August 24, 1962 and January 23, 1963 (when judgment was rendered against defendant on his Queens County indictment) may not be charged against the District Attorney of Kings County because during that period defendant was involved solely with the criminal proceedings against him in Queens County. Nor may the period between August 23, 1963 (when defendant moved to dismiss the Kings County indictment under section 668 of the Code of Criminal Procedure) until October 10, 1963 (when defendant was returned to Kings County for trial) be computed as part of the period of delay (cf. People v. Henderson, 20 N.Y.2d 303). Therefore, the greatest delay which may be charged to the District Attorney of Kings County is the seven-month period between January 23, 1963 (when the Queens County proceedings were completed) and August 23, 1963 (when defendant moved to dismiss the Kings County indictment). No case has held that a seven-month delay warrants dismissal of an indictment. Such a delay has been held insufficient to warrant dismissal (People v. Hernandez, 7 A.D.2d 724).
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