OPINION OF THE COURT
This motion to dismiss asserts that a 12-year delay in imposing sentence has deprived the court of jurisdiction. Its
FACTS
On April 16, 1974 defendant, then 19 years old, was sentenced to probation on his guilty plea to petit larceny. (Penal Law § 155.25.) On May 13, 1975 he pleaded guilty to a violation of probation based on his failure to report. On June 12, 1975, the tentative sentencing date, and on three subsequent occasions, the defendant appeared but his attorney did not.
GENERAL PRINCIPLES
The Criminal Procedure Law requires that "[sjentence must be pronounced without unreasonable delay.” (CPL 380.30 [1].) Modeled on Federal law (cf, Fed Rules Crim Pro, rule 32), the statute reaffirms long-standing New York policy (see, People ex rel. Harty v Fay,
The statute’s negative wording makes clear that sentence can be postponed under reasonable circumstances. It necessarily implies both broad judicial discretion and a case-by-case determination. Nevertheless, certain generalizations can be made. A deliberate refusal to set a date for sentencing or a permanent deferral of sentence is per se unreasonable and improper. (Matter of Hogan v Bohan,
In contrast, "delayed sentencing” refers to passive inaction, an inadvertent or unexplained failure to impose sentence. (See, People ex rel. Harty v Fay, supra, and cases cited therein; People v Green,
JURISDICTION
"Loss of jurisdiction” has become a term of art, a veritable
The term is derived from old common-law practice. Originally, at common law, a court having criminal jurisdiction was obliged to impose sentence during the term of court in which the defendant was convicted. While the power to "respite” or "reprieve”, i.e., to defer imposition of sentence, was recognized in Elizabethan times, if a court did not affirmatively act during its term to either impose or defer sentence, jurisdiction was "lost”, i.e., its power to act on the pending case ended with the court’s term. (2 Dyer 234b [1564]; see, Evans and Stallman, op. cit, NYU, Nov. 23, 1982, at 26, col 1.) This drastic result was altered by statute, which has repeatedly extended the power of the trial court to impose sentence beyond the rigid limitation of its own term. (Former Code Grim Pro §§ 471, 472, 482; CPL 380.30.)
In New York case law, the term first appeared in the delayed sentencing context, as a passing reference, in 1887. (People v Everhardt,
Existing law recognized that a trial court could be compelled, by mandamus, to impose sentence when it had been deliberately and indefinitely delayed. (Matter of Hogan v Bohan,
Some cases have apparently used the term "loss of jurisdiction” metaphorically, meaning that dismissal is the only remedy appropriate to punish official wrongdoing and prevent its reoccurrence. Thus, while the court retains the power to adjudicate the case before it, justice requires that it not be exercised. (See, e.g., People ex rel. Harty v Fay, supra, at 379; People v Drake, supra, at 366-367; People v Warrelman,
Other cases appear to employ the term literally. For example, past tense implies that the court actually ceased to have the power to impose sentence. (E.g., People v Bliss,
An examination of basic jurisdictional principles compels the conclusion that the term "loss of jurisdiction” should be understood literally. At issue here is whether this court still has in personam jurisdiction in this particular case, i.e., the power to subject this defendant to punishment.
The essential substantive prerequisite for personal jurisdiction is timely notice and an opportunity to be heard. An attempt to subject a defendant to liability without such notice is a violation of constitutional due process. (US Const 14th Amend; NY Const, art I, § 6; Mullane v Central Hanover Trust Co.,
If a party serving process conceals its character, he is neither properly performing the formal, canonical act required for jurisdiction nor adequately communicating to the defendant that he is being sued. (See, Bulkley v Bulkley, 6 Abb Prac 307.) By parity of reasoning, if a party to litigation acts so as to mislead another party as to the continued pendency of an action, there can be jurisdictional consequences.
Thus, if an outstanding bench warrant is disregarded when the defendant is brought before the court on another charge, the court and the prosecution are failing to execute a formal prerequisite for resuming prosecution of the prior case. More importantly, they are communicating that the prior action is no longer pending. By so doing, they are accomplishing the opposite of that which constitutionally compatible notice seeks to accomplish. Due process must be accorded continuously throughout the course of a litigation. Notice, as a jurisdictional requirement, is a dynamic concept. Once properly given, notice need not be renewed periodically; however, if it is vitiated by the incompatible action of the court or a party, the result is necessarily a failure of jurisdiction.
CONSTITUTIONAL CONSIDERATIONS
The New York courts have regarded the right to prompt imposition of sentence as derived from statute and public policy. (See, e.g., People ex rel. Harty v Fay, supra; People v Drake, supra.) Although no New York court has so held, this right is rooted in Federal and State constitutional law.
The right to a speedy trial embraces the right to an expeditious resolution of all pretrial and posttrial proceedings. (US Const 6th Amend.) The Sixth Amendment of the US Constitution explicitly applies "[i]n all criminal prosecutions”. (US Const, 6th Amend, cl 1.) It should be interpreted to support its purpose of assuring that all phases of criminal proceedings are expeditiously resolved. (See, Dickey v Florida,
The United States Supreme Court has not explicitly held the Sixth Amendment of the US Constitution applicable to a delayed sentencing situation. However, in 1956, it declared: "We will assume arguendo that sentence is part of the trial for purposes of the Sixth Amendment.” (Pollard v United States,
Since the Speedy Trial Clause of the Sixth Amendment of the US Constitution is applicable to the States through the Fourteenth Amendment of the US Constitution (Klopfer v North Carolina,
Second, the length and circumstances of the delay could have created a situation where the defendant no longer had objective notice of a pending prosecution. To impose sentence on an ostensibly abandoned case could be grossly unjust, especially if the defendant has relied on its apparent abandonment and ordered his life accordingly, or where the passage of time has otherwise changed the defendant’s circumstances. To permit the revival of long-abandoned prosecutions could encourage discriminatory, selective enforcement and could have an impermissible chilling effect on unpopular individuals or groups.
Imposition of sentence after an unreasonable delay could well constitute cruel and unusual punishment. (US Const 8th Amend.)
Furthermore, imposition of sentence after an unreasonable
PROCEDURAL ISSUES
New York law, based on broad policy considerations, recognizes an inference that "delay inevitably results in prejudice to the defendant.” (People v Drake,
It is the defendant, however, who has the initial burden of going forward when sentence is first sought to be imposed. It is he who must raise the issue of unreasonable delay and a loss of jurisdiction by a motion to dismiss. First, to the extent that the court’s power to impose sentence is a function of in personam jurisdiction, it can be waived under appropriate circumstances. Second, delay alone neither constitutes proof of loss of jurisdiction nor sets up an irrebuttable presumption. The defendant must initially set forth allegations of fact tending to show that the delay was unreasonable. The circumstances should be presented with sufficient clarity and specificity, to show that the claim of unreasonable delay is a real one advanced in good faith, framed so as to be answerable by the prosecutor.
The prosecution must then advance specific evidence which, if not disputed, would be sufficient to prove that the delay was reasonable under a totality of the circumstances. If such evidence is not proffered, the defendant’s motion should be summarily granted. If such evidence is produced and not adequately disputed, then summary denial of the motion may be appropriate. If the prosecution’s papers or the defendant’s reply raise triable factual issues not susceptible to determination on the papers, the court should conduct a hearing as to those issues. (See, Matter of Miller v Sullivan,
APPLICATION
The defendant has adequately met his burden of going forward. The defendant’s motion to dismiss clearly sets forth
The delay at issue is so extreme as to be per se unreasonable unless appropriately explained. It is utterly disproportionate both to the time necessary to determine a proper sentence and to the maximum punishment which could have been imposed. Under these circumstances, evidence of the unusual delay alone is sufficient to call jurisdiction into question. The repeated failure of the People and the court to cause the outstanding bench warrant to be executed could only be justified by proof that the defendant concealed his identity, or otherwise acted to prevent the bench warrant from "dropping” on him upon each rearrest. No such explanation or supporting evidence has been proffered.
Rather, the People argue that the defendant was responsible for the initial postplea delays, and therefore should be held responsible for the entire delay. Such reasoning is unsound. The many delays constituting the total delay at issue can be subdivided for analytical purposes into three categories: first, the postplea adjournments between May and September 1975, necessitated by the absence of defense counsel; second, the period between the defendant’s failure to appear for sentence in September 1975 and the first of his three rearrests; and third, the remaining period of approximately 10 years, including his other two rearrests. Each discreet period of delay must be analyzed independently, as would be required in a case of pretrial delay. (See, Matter of Miller v Sullivan,
The second period of delay appears to be chargeable to the defendant. There is no claim that the defendant did not know that he was required to return to court for sentence on September 17, 1975, when a bench warrant was issued which remained outstanding for well over 11 years. Defense counsel argues that this entire span should be chargeable to the People, because there was no attempt to bring the defendant before the court to be sentenced on this case. This argument is without merit.
A bench warrant, like an ordinary arrest warrant, but unlike a search warrant, does not have a limited lifespan (CPL 1.20 [30]; 530.70; cf, CPL 120.80 [arrest warrant], 690.30 [search warrant; 10-day lifespan]). Passage of time alone does not cause a valid bench warrant to expire or become stale.
The Criminal Procedure Law, in providing for the issuance of a bench warrant, authorizes an expeditious device for police or court officers to arrest a nonappearing defendant and to return him to court. (CPL 1.20 [30]; 530.70; Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 530.70, at 103.) It does not itself impose a duty on those, or other State officers, to seek out an absent defendant whose whereabouts are not known. The New York speedy trial law (CPL 30.30) provides that periods of a defendant’s absence or unavailability are not chargeable against the People provided that the People have used "due diligence” to locate him and secure his presence. (CPL 30.30 [4] [c].) When read together, a statutory duty to affirmatively seek out absent defendants can be implied.
CPL 30.30 is applicable, by its own terms, only to the period before trial. While it seeks to implement the constitutional right, it is more rigid than the Constitution requires (see, Barker v Wingo,
Conversely, the People argue that the defendant’s nonappearance in September 1975 constituted a permanent waiver of his right to a prompt sentence, thereby justifying all subsequent delays. This argument is also without merit.
While the defendant had an obligation to appear in court on the date to which his case had been adjourned with his knowledge, the defendant’s absence on the adjourned date was not a permanent consent to all ensuing delays. Many reasons, including, illness and incapacity, can be responsible for a defendant’s failure to appear; thus, absence is viewed by the courts as equivocal and nondispositive. (See, People v Parker,
When the defendant was rearrested on another charge in January 1977, the instant bench warrant issued in September 1975 should have "fallen”, i.e., it should have been disclosed by search of the warrant file and executed on the defendant, who then could have been sentenced. It cannot be determined why this did not happen; in any event, the reason, if any, is immaterial. The State has the responsibility of properly filing, indexing, and retrieving the warrants, which are its own process. The existence of an outstanding warrant is, or should be, within the knowledge of the court and the police.
Once a defendant is known to be in custody, the State has the constitutional duty to promptly execute the outstanding warrant. (See, Smith v Hooey,
Nonetheless, the People claim that the defendant waived his right to be sentenced on this case by not raising the issue on the intervening occasions on which he was brought before the court.
Since the right to be sentenced without unreasonable delay is a function of in personam jurisdiction, it can be waived. In order to demonstrate a waiver of a constitutional right, the People must prove that the defendant intelligently and voluntarily relinquished a known right. (Johnson v Zerhst,
The People have not met their burden of proving such a
First, the defendant has no duty to speak under those circumstances; he need not remind the State of pending charges and need not demand to be sentenced. To argue otherwise is to impermissibly reassign to the defendant both a substantive duty and a procedural burden which constitutionally must rest on the People. Moreover, it would unfairly force a defendant to choose to forego one or another significant constitutional right: by silence, to forego the right to be promptly sentenced; by speaking, to forego the right to be free from self-incrimination, since discovery of an outstanding charge could result in a bail-jumping prosecution. (US Const 5th Amend.) Such a Hobson’s choice is so inherently unfair as to be a violation of due process; it is antithetical to the exercise of free will required for a genuine waiver.
Second, one can only waive a right one knows one has. When the defendant was brought before the court — indeed on three different occasions — and not called upon to answer for the outstanding warrant, the defendant was effectively given notice that the instant matter was no longer pending.
The delay in this case attributable to the State was unexplained and extreme, and amounted to an abandonment of the prosecution. It deprived the defendant of his right to be promptly sentenced and to thereafter resume his normal life. To impose punishment at this late date would serve no valid punitive, rehabilitative or deterrent purpose. To impose even an unconditional discharge would conceal a significant, unjustifiable failure of the criminal justice system and would thus only encourage its future repetition. Imposition of any sentence under these circumstances would violate the defendant’s constitutional rights to due process and speedy trial and would constitute cruel and unusual punishment. Since this court, like any court, lacks the power to act contrary to constitutional standards, this court concludes that the extreme delay has caused it to lose jurisdiction over this violation of probation proceeding. The proceeding is accordingly ordered dismissed.
Notes
. Although the court papers reflect multiple judicial directions that defendant’s Legal Aid Society attorney be notified, the papers show such notification only for one court appearance.
. Subject matter jurisdiction, i.e., the general power of a particular court to adjudicate all cases of a certain class (see, Gager v White,
. Under other circumstances, not apparently present here, the delay per se, even if sentence is not ultimately imposed, could amount to cruel and unusual punishment. US Constitution Eighth Amendment analysis has been held applicable to the presentencing context. (Johnson v Glick, 481 F2d 1028; Stevens v County of Dutchess,
. Fairness to the prosecution and the public interest requires that the
. Restated somewhat differently: There are no presumptions regarding any of the individual factual issues which may arise. However, because the burden of proof is placed on the prosecutor opposing the relief sought, not on the moving defendant, it can be said that once the ultimate issue of loss of jurisdiction is properly raised by the defendant, a rebuttable presumption arises that the delay was unreasonable and that the court lacks jurisdiction.
. While the supporting papers consist entirely of an attorney’s affirmation containing some hearsay, the salient allegations are based on verifiable knowledge gained from filed papers and official records.
. The passage of time has been prejudicial to the prosecution as well, particularly affecting its ability to respond to the instant motion. The People may well lack access to their original files, although no request was made for an additional opportunity to investigate. Accordingly, those allegations not disputed must be deemed conceded. It is indeed unfortunate that the People are unable to shed light on how this case fell between the proverbial cracks. The court cannot permit such difficulty to affect its determination since that would impermissibly alter the People’s burden of producing evidence and proving the existence of continued jurisdiction.
. The court’s own attempts to determine why the warrant never "dropped” have been fruitless and frustrating. Records are incomplete and inadequately cross-referenced, perhaps a result of the gradual computerization of the courts during the period in question. Given the constitutional interests at stake, even inadvertent ministerial error cannot be excused.
. It is not necessary for the court to consider what standard of proof is applicable to the question at issue. Since the People have not offered any evidence, the standard of proof is academic here.
. There is no evidence to indicate that the defendant knew that he was still wanted on the instant proceeding between the time the warrant should have fallen and the time at which it did fall. In any case, given the constitutional and policy reasons already stated, the defendant’s subjective knowledge should not be material.
. Given the unusual circumstances of this case, including the repeated failure of the Probation Department to appear, and the need of the attorneys for the defendant and the People to investigate, the delay in bringing this instant motion to dismiss should also not be deemed a waiver.