37 Misc. 2d 386 | New York County Courts | 1960
By this motion, defendant seeks an order dismissing an indictment, with prejudice. His application is grounded on the District Attorney’s failure to bring him to trial thereon within 180 days after service, upon the prosecutor, of a notice of the place of defendant’s imprisonment — in the State of New Jersey — and a request for a final disposition of the indictment. The decision turns upon an interpretation of the pertinent provisions of the Interstate Agreement on Detainers, pursuant to which defendant’s notice and request was served. (New York Code Crim. Pro., § 669-b; N. J. Stat. Ann., §§ 2A :159A-l-A-15.)
The indictment — filed December 1,1958 — accuses the defendant (and another) of robbery, first degree, and related felonies. When so indicted, he was at liberty on a consolidated bail bond. Upon his appearance for arraignment on December 10,1958, the matter was put over for a week but, within that week, defendant was convicted of a crime in the State of New Jersey, was sentenced therefor, and commenced service of the term of imprisonment imposed by the New Jersey court. Consequently, he did not appear for arraignment upon the adjourned date. On January 15, 1959, the Director of the Division of Correction and Parole in the State of New Jersey sent to the Clerk of the County Court, Queens County, a copy of the Interstate Agreement on Detainers. His covering letter — referring specifically to this defendant — suggested that Esposito could be returned to face trial on the Queens County indictment in either one of two ways: ‘ ‘ The Court or your prosecutor can request temporary custody * * * under the provisions of Article IY * * or the prisoner himself can notify the Warden of the New Jersey State Prison of his desire to be taken out and tried promptly as provided for in Article III.”
On the 8th of that month defendant’s counsel sent a letter to the Warden of the New Jersey State Reformatory, at Rahway, New Jersey, to which place defendant had, meanwhile, been transferred. With the letter there were two enclosures. The first was a copy of a letter sent by the attorney to Esposito, instructing the latter to sign and deliver to the Warden an enclosed “ letter ”, with the request that the Warden mail it to the District Attorney of Queens County, to whom it was addressed. The second enclosure was a copy of the ‘ ‘ letter ” just referred to. Actually, it was a notice of the place of Esposito’s imprisonment and a request for final disposition of the Queens County indictment, pursuant to the provisions of article III of the Agreement. It was dated May 11, 1959, and bore a footnote indicating that copies were forwarded, respectively, to the Warden of the New Jersey State Reformatory and to the County Court of Queens County, addressed in the latter case, to the Chief Clerk of the court. On May 12,1959, the Chief Clerk of the County Court received a copy of the counsel’s communication to the defendant, but there is no record of the receipt from the Warden of any copy of the prisoner’s notice and request. However, on May 21, 1959, the District Attorney received his copy from the Warden, but by ordinary mail, and unaccompanied by any certificate setting forth the term of the
On that day one of his assistants procured a Judge of this court to certify and transmit to the Warden of the New Jersey State prison a request for temporary custody, in accordance with the provisions of article IV of the Interstate Agreement. In its first paragraph, the assistant alleged that Esposito, under date of May 14, 1959, had made a demand under section 669-b of the (New York) Code of Criminal Procedure, that the indictment be disposed of. “ With reference thereto ”, the assistant went on to supply basic particulars of the charges contained in the indictment; he stated that he proposed to bring the defendant before the Queens County Court for arraignment and trial at the earliest possible date and “ [i]n order that proceedings in this matter may properly be had ’ ’ he made the request for temporary custody. But the Warden did not respond with any offer of temporary custody in accordance with the provisions of article V of the Agreement, and the District Attorney let the matter rest until January 14, 1960. On that day he applied to another Judge of this court for a writ of habeas corpus, commanding the New Jersey prison official to produce the defendant, on a date specified, in the County Court of Queens County for arraignment and trial under the Queens County indictment. The application was denied because the Judge to whom it had been presented was of the opinion that the defendant then had an accrued right to a dismissal of the indictment. In that state of affairs, the issuance of the writ would not only have been a vain act but might very well have been interpreted as a judicial act of co-operation in an effort to evade the sanctions of the Interstate Agreement. On March 2, 1960, the defendant served his notice of the motion now before the court, together with the papers in its support. On March 23, 1960, the Warden of the New Jersey State prison acceded to the District Attorney’s request — made October 27,1959 — for temporary custody of the defendant. Consistently with that decision he supplied the
He contends that Esposito’s notice and request was fatally defective by reason of the New Jersey Warden’s omissions, already outlined. Therefore (so he urges), it should be ignored as a nullity. Consequently (he continues), the District Attorney’s application of October 27,1959, constitutes the only action taken under the Interstate Agreement and, under its applicable provisions the indictment may not be dismissed unless he fails to commence defendant’s trial thereon within 120 days after the latter’s arrival in New York. (Art. IY, par. [c].) If that contention be correct the prisoner’s effort to invoke the interstate procedure can be defeated by ineptitude — or worse — at least to the extent that final disposition of the outstanding charges can be postponed indefinitely, by official confusion, compounded. Take this case as an example. The notice was received by the District Attorney on May 21,1959. If the 180-day period started running on that date it would expire on November 17,1959. But if the Warden’s inadvertence cancelled that notice, the District Attorney would have a period of 120 days from March 23, 1960 or, until July 21, 1960 to commence the trial unless, of course, the court, for good cause shown, should grant him a necessary or reasonable continuance. Without such a continuance the trial would begin 14 months after the prisoner’s notice had been received. By that view, this law has wax teeth and is little more than a legislative exercise in futility. I decline to so interpret it.
Its sanctions were meant to enforce its purpose and it is crystal clear that that conspicuous purpose is to hasten the final disposition of outstanding charges. By way of express declaration of that purpose it recites that: ‘ The party states find that charges outstanding against a prisoner, detainers based on untried indictments * * * and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation.” It is then further declared to be the
Paragraph (a) of article III provides that: ‘‘ Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment # * provided that for good cause
By mandate of the law: “All courts, departments, agencies, officers and employees of this state and its political subdivisions are hereby directed to enforce the agreement on detainers and to cooperate with one another and with other party states in enforcing the agreement and effectuating its purposes.” (Agreement, art. IX, par. 3.) Paragraph (c) of article III specifically directs that “ The warden * * * or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment * * * on which the detainer is based.” Sensibly, adequate information as to the prisoner’s right to make the request would have to include intelligence as to the procedures to be followed in asserting it.
Thus, although the Warden sent Esposito’s notice and request — dated May 11, 1959 — by ordinary mail, instead of by registered or certified mail, return receipt requested, there is no question that the District Attorney received it on May 21, 1959 and, although the Warden did not append his certificate as to the term of imprisonment, and so forth, the District Attorney requested and received, within a week, the information which the certificate would have supplied.
The notice and request was deemed to be a waiver, by the prisoner, of extradition to the State of New York for a final disposition of the Queens County charge, a like waiver to serve any sentence imposed in the event of his conviction and, in general, a consent to the production of his body in any court where his presence might be required to effectuate the purpose of the agreement. (Agreement, art. Ill, par. [e].) In response to the request — and to the Warden’s offer — all that the District Attorney had to do was to signify his acceptance of the offer to the official making it, and present evidence of his identification and authority, along with a certified copy of the indictment. (Id., art. V, par. [b].) It would thereupon have been lawful and mandatory upon the Warden to give over the person of the
. The statute will hereafter be referred to as the “ Agreement ”. The States now parties thereto are: Connecticut (Gen. Stat., tit. 54, ch. 965, §§ 54-186-54-192, eff. date not shown, enacted, 1957, Public Act No. 404, S-1 to S-7); New Hampshire (Rev. Stat. Ann., §§ 606-A:1-A:6, eff. July 17, 1959); New Jersey (Stat. Ann., §§ 2A :159A-1-A-15, eff. April 18, 1958); New York (Code Crim. Pro., § 669-b, eff. Sept. 1, 1957) and Pennsylvania (Purdon’s Pa. Stat. Ann., tit. 19, §§ 1431-1438, eff. Sept. 8,1959).
. The reference was, of course, only to the procedures established by the Agreement. The availability of other means of securing temporary custody was not at issue. (See N. Y. Code Crim. Pro., § 832; N. J. Stat. Ann., § 2A:160 — 33; Rau v. McCorkle, 45 N. J. Super. 191, 196, 197 and authorities there cited; Ponzi v. Fessenden, 258 U. S. 254. In the Federal jurisdiction, see U. S. Code, tit. 18, § 4085.)
. The Warden may have interpreted the provisions of the Agreement as giving the prisoner no right to serve a notice and request — and hence, as creating no duty upon his part to mail it — until the lodging of a detainer based on the outstanding indictment. (See art. Ill, pars, [a], [b], [c], [d], art. IV, par. [a], art. V, par. [b], el. [2], and art. V, par. [d].) I so hold. Accordingly, the notice of January 19, 1959 is of no importance except so far as it should have inspired an awareness of the duties which followed its delivery to the Warden, in a proper case.
. See Report of the Joint Committee on Detainers (1948). In 1955, “upon the recommendation of the New York Joint Legislative Committee on Interstate Cooperation, the Council of State Governments undertook to revive informally the machinery of the old joint committee approach for a fresh look at the problem.” (Minutes of Special Committee Meeting Sponsored by the Council of State Governments and the New York Joint Legislative Committee on Interstate Cooperation, Nov. 25,1955, p. 2.)
. See article I (p. 4) of the proposals before the Special Committee at its meeting of November 25, 1955, and article I (p. 3) of the proposals before it on February 10, 1956.
. See Minutes of Special Committee Meeting, February 10, 1956, p. 3.
. This requirement was not embodied in the earlier draft. The Special Committee, at its meeting of February 10, 1956 (Minutes, p. 3), directed Dr. Mitchell Wendell (Research Consultant to the New York State Joint Legislative Committee) “to add language making it mandatory for the warden to notify the prisoner of detainers * *' • and of his privileges under the act.” The State of New Jersey was represented at that meeting. (Minutes, p. 1.)
. Delegates to a Joint Conference were concerned with a possibility that the Warden’s failure to attach the material enumerated in the intrastate act (Our Code Grim. Pro., § 669-a, subd. 1) might void the request. The significant language of the Interstate Compact is the same. But the whole purpose of the certificate seems to have been to assure the District Attorney of sufficient information to enable him to make an intelligent decision as to whether to “ drop the detainer immediately, without additional correspondence back and forth.” (See Minutes of Joint Conference on Legislation Dealing With Detainers, etc., April 14, 1956, p. 2.)
. An imperfect understanding of official duty might well be cured by requesting the good offices of the State administrative officer. In this ease, any difficulty might have been overcome more directly, by communication with Mr. Bixby, the Director of the Division of Correction and Parole, of the Department of Institutions and Agencies in New Jersey. He was present at the meeting of the Special Committee on February 10, 1956 (Registration List, Minutes, p. 1) and his representatives attended the meetings of Nov. 25, 1955 (Reg. List, Minutes, p. 1) and April 14,1956 (Reg. List, Minutes, pp. 1, 2).