People v. LomaxPeople v. Lomax
OPINION OF THE COURT
Dеfendant James Lomax was arrested on March 23, 1977 and charged with having stolen certain tangible personal property at knifepoint. He was arraigned within 24 hours of the arrest, and on March 28, 1977, a Grand Jury handed up an indictment charging him with several counts of robbery in the first degree, grand larceny in the third degree and criminal possession of a weapon in the fourth degree. On March 29, defendant was arraigned on the indictment. Some nine and a half months later, on January 3, 1978, defendant’s motion to dismiss the indictment on the ground that he had been deprived of his right to a speedy trial (CPL 30.20, 30.30) was summarily denied without an evidentiary hearing. His subsequent trial terminated inconclusively when the jury reported itself unable to agree upon a verdict and a mistrial was dеclared. Shortly thereafter, defendant pleaded guilty to a reduced charge of attempted robbery in the third degree.
On this appeal from the judgment of conviction entered upon the plea, which judgment was affirmed by a unanimous Appellate Division panel, defendant contends that the trial court’s denial of his speedy trial motion was improper and that, consequently, he is entitled to a reversal of the judgment.
Our decision is based primarily upon the recitation of facts contained within the sworn affidavit submitted by defense counsel in support of the speedy trial motion. In this affidavit, counsel notеd that the original indictment of March 28, 1977 had been dismissed on June 14 as a result of a motion made by defense counsel under CPL 210.30. The District Attorney had been granted leave to resubmit (see CPL 210.45, subd 9), however, and on June 23, 1977, a new indictment encompassing the same criminal charges was handed up, whereupon defendant was again arraigned. Toward the end of September, 1977, according to defendant’s affidavit, a hearing was held upon a second defense motion requesting, among other relief, an inspection of the minutes of the second Grand Jury’s deliberations, but the trial court’s final decision rejecting defendant’s request was not announced until November 2. Finally, the affidavit stated, although defendant appeared on Decembеr 8, 1977 for his scheduled trial, a three-week adjournment was granted in order to accommodate the District Attorney, whose chief witnesses were vacationing out of the State.
In the present appeal, defendant contends that the foregoing information, presented to the Trial Judge in affidavit form, was in itself sufficient to warrant dismissal of the indictment under CPL 30.30, particularly in view of the fact that the People did not in any way attempt to controvert his factual allegations. At the very least, defendant argues, the trial court should have conducted a hearing to ascertain whether the speedy trial claim asserted in defendant’s motion papers had any factual or legal merit. Because we find that defendant’s mоtion papers were inadequate on their face, however, we conclude that the trial court acted within the scope of its discretionary authority when it summarily denied the motion and directed the parties to proceed to trial.
Preliminarily, we note that the starting point for our analysis of defendant’s speedy trial claim must be March 24, 1977, the date upon which defendant was first arraigned and the first accusatory instrument in the criminal proceeding
Obviously, if there can be only one criminal action for any given set of charges, there also can be only one date which marks the "commencement” of the action, the date on which the first acсusatory paper is filed. Thus, in the present case, the criminal action must be deemed to have been commenced for purposes of CPL 30.30 on the date when the original felony complaint was filed, March 24, 1977, and not on June 23, when the sеcond indictment was returned.
Nevertheless, although more than six months had elapsed since that date without a statement of readiness by the People (see People v Hamilton,
Aрplying this provision in the speedy trial context, we have held that where a defendant moves to dismiss on the grounds specified in CPL 30.30 and includes in his moving papers sworn allegations that there has been an unexcused period of delay in excеss of the statutory maximum, the motion must be granted summarily unless the People in some way controvert the factual basis for the motion (People v Gruden,
Specifically, defendant’s papers contained averments which indicated that there were several pеriods of time following his first arraignment during which the criminal action against him was delayed due to pretrial motions that had been made by the defense. Under the clear language of CPL 30.30 (subd 4, par [a]), such periods would generally be excluded from the total time within which the People are required by statute to become ready to proceed to trial. Unfortunately, it was impossible for the Trial Judge who heard defendant’s motion to ascertain from the submitted papers the extent to which the People’s failure to be ready within the statutory time period was attributable to the delays resulting from defendant’s prior motions, since defendant’s papers did not specify the dates upon which the earlier motions had been madе, and the Trial Judge was therefore left without a means to compute the relevant excludable periods. In other words, having himself shown that some portion of the delay in the People’s readiness for trial was "excusable” under the terms оf the statute, defendant then neglected to demonstrate that there remained a sufficient "unexcused” period of delay to warrant a dismissal of the charges under CPL 30.30 (subd 1, par [a]). Hence, through the averments in his motion papers, defendant effectively brought himself within the terms of CPL 210.45 (subd 5), which gives the trial court discretionary authority to deny
Similarly, it was not error for the Trial Judge summarily to reject defendant’s general speedy trial claim (see US Const, 6th and 14th Arndts; CPL 30.20; Civil Rights Law, § 12), since the allegations in his mоtion papers did not spell out a legal basis for relief. As we have noted on several previous occasions, "the assertion by the accused of his right to a speedy trial requires the court to examine the claim in light of the particular factors attending the specific case” (People v Taranovich,
Accordingly, the order of the Appellate Division should be affirmed.
Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur.
Order affirmed.
Notes
. The People have not asked this court to consider the possibility that defеndant’s guilty plea constituted a waiver of any right he may have had to have the charges
. Additionally, although the observation is not necessary to our holding, we note that our own computations, made on the basis of dates and time periods concеded in defendant’s briefs, lead us to the conclusion that defendant could not have succeeded in obtaining a dismissal of the charges, even if he had been afforded a full evidentiary hearing. This is so because less than six of the nine and one-half months that intervened between the time defendant was arraigned and the time his trial was commenced may be considered a period of delay attributable to the People under CPL 30.30; the remainder of the time was clearly the result of "other proceedings” initiated at the behest of defendant and thus may be considered "excludable” time pursuant to CPL 30.30 (subd 4, par [a]).