It is well-settled law that constitutional speedy trial claims may not be waived because "society has a recognized interest in speedy trials." People v. Seaberg, 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 971, 541 N.E.2d 1022 (1989). Trial delays can result in loss of evidence, increased anxiety to the defendant, and unavailability of witnesses. Id.; See also People v. Blakley, 34 N.Y.2d 311, 357 N.Y.S.2d 459, 313 N.E.2d 763 (1974). Petitioner's waiver of his right to appeal, therefore, does not preclude him from bringing this petition for habeas corpus.
A review of the record demonstrates that petitioner was not denied his Sixth amendment right to a speedy trial. In Barker v. Wingo, the United States Supreme Court outlined a four-part inquiry to determine whether a defendant's speedy trial right had been violated by prosecutorial delay. 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); See also Doggett v. United States, 505 U.S. 647, 120 L. Ed. 2d 520, 112 S. Ct. 2686 (1992); People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79, 335 N.E.2d 303 (1975). These four factors include "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at 530. A balancing of these factors clearly shows that petitioner's claim is without merit.
Ordinarily, an examination of the Barker factors is unnecessary unless the length of the delay is presumptively prejudicial. Id.; See also United States v. Vassell, 970 F.2d 1162, 1164 (2d Cir. 1992). There is no precise amount of delay necessary to trigger an inquiry. However, "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Barker, 407 U.S. at 531; See also People v. Johnson, 38 N.Y.2d 271, 379 N.Y.S.2d 735, 342 N.E.2d 525 (1975). This court need not decide whether petitioner's fifteen month delay between arrest and plea is "presumptively prejudicial" since the remaining Barker factors do not support petitioner's claim.
Of all the factors, the reason for the delay weighs most heavily against petitioner. A significant amount of the delay is attributable to actions taken by petitioner's attorney. Petitioner's attorney not only requested several adjournments, but also failed to attend numerous scheduled conferences. Petitioner's attorney also filed several motions causing further delay.
There are several other reasons for the delay which are not attributable to either the government or the petitioner, but rather qualify as exceptional circumstances. These include the necessary two month adjournment of the case due to the presiding judge's unexpected illness, and the delay caused by the recusal of the judge due to a conflict between the Sandoval hearing and bench trial of Washington.
Any delay that is attributable to the government is minimal. The only substantial delay that could be charged to the government was its failure to stipulate the Bill of Particulars for the second indictment. The Bill was, however, exactly the same as the Bill of Particulars for the first indictment. Therefore, the government's failure to stipulate did not have a serious impact on the petitioner's trial readiness and cannot be cited as contributing to petitioner's own delay.
Petitioner's failure to assert his right to a speedy trial also weighs against him. The record clearly indicates that petitioner did not assert his speedy trial claim until August 28, 1992, a full thirteen months after his arrest, thirteen months of pre-trial incarceration. Furthermore, petitioner barely kept the issue preserved for appeal when he waived all rights to appeal his plea and sentence.
The fourth Barker factor, prejudice to the defendant, also does not avail petitioner. Petitioner contends that he was unable to assist in the preparation of his defense due to his pre-trial incarceration and inability to post bail. See Petitioner's Memorandum of Law, at 28. Petitioner also alleges that witnesses, who were difficult to identify because their street and real names differed, were unable to be located. Id. However, petitioner does not make clear how a speedy trial would have remedied these difficulties. While this court is mindful of the fact that it is difficult for a petitioner to establish prejudice due to delay, Barker, 407 U.S. at 532, the fact that a substantial portion of the delay was directly attributable to the petitioner's actions, that petitioner did not assert speedy trial issues until thirteen months after his incarceration, and that petitioner has not articulated any specific prejudice resulting from the "delay," persuades this court that there has been no Sixth Amendment violation. Accordingly, the petition is denied. The Clerk of the Court is directed to close the case in this matter.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
July 9, 1997