88 Misc. 2d 531 | N.Y. City Crim. Ct. | 1976
The defendant was arraigned on August 20, 1975 on a felony complaint charging assault in the second degree, criminal possession of a weapon in the fourth degree and criminal mischief in the third degree (Penal Law, §§ 120.05, 265.01, 145.05). On November 5, 1975, after a number of adjournments, a preliminary hearing was held at which the original charges were reduced to harassment and criminal mischief in the fourth degree (Penal Law, §§ 240.25, 145.00), and the matter was set down for trial for December 1, 1975. Following some more adjournments, the defendant brought a motion under CPL 30.30 seeking dismissal of the action on the ground of denial of his right to a speedy trial. Relying upon CPL 30.30 (subd 5, par [c]), the court denied the motion, since the delay involved was well within the 90-day period permitted by the statute, as calculated from the date of the filing of the new accusatory instrument.
According to CPL 30.30 (subd 5, par [c]): "where a criminal action is commenced by the filing of a felony complaint, and
The defendant now challenges the constitutionality of this provision as being in violation of the due process and equal protection clauses of the Constitutions of both the State of New York and of the United States. He argues that CPL 30.30 (subd 5, par [c]) gives conclusive weight to the allegations contained in the felony complaint, thus depriving him of his right to due process. In support of his contention, he cites People v Brian R. (78 Misc 2d 616, affd 47 AD2d 599) which declared unconstitutional CPL 720.10 (subd 2, par [a]). Under this provision, youthful offender treatment was not available to an otherwise eligible youth "indicted” for a class A felony. The court held that in relying upon the grade of offense charged, as opposed to the grade of offense for which the youth is ultimately found guilty, the law gave conclusive weight to the untested allegations of the indictment. This, the court stated, was contrary to the due process clauses of the State and Federal Constitutions, and, since the law irrationally discriminated against those youths charged with class A felonies, it also constituted a violation of the equal protection of the laws.
However, in view of People v Drayton (39 NY2d 580), Brian R. would seem to be of questionable authority. In Drayton, there was a challenge to the constitutionality of CPL 720.20 (subd 1) which provides that a court may, in its discretion, find that an eligible youth is a youthful offender, except where the conviction occurs in a local criminal court and the eligible youth had not prior to the commencement of trial or entry of
Further, the defendant would apparently have this court raise to a constitutional mandate what is no more than a statutory scheme. The time limitations within CPL 30.30 are considerably stricter than those required by constitutional standards. (People v Sturgis, 77 Misc 2d 766.) As established by the United States Supreme Court in Barker v Wingo (407 US 514) a defendant’s constitutional right to a speedy trial cannot be decided by any inflexible rule but on an ad hoc balancing basis in which various factors (p 533) "must be considered together with such other circumstances as may be relevant.” The factors specifically mentioned by the court were the length of the delay, the reason assigned by the prosecution to justify the delay, the defendant’s assertion of his right, and prejudice to the defendant.
No court has ever declared that a 90-day speedy trial rule is a constitutional requirement for all misdemeanor cases. The fact that in certain instances in which a criminal action is commenced by the filing of a felony complaint and is then replaced or converted to an information, prosecutor’s information or misdemeanor complaint, more than 90 days may have elapsed between the bringing of the initial charge and the start of trial, it does not necessarily follow that the defendant’s constitutional rights have been in any way abridged. Moreover, CPL 30.30 (subd 5, par [c]) specifically provides that in no event may the permissible time period, not counting that which is otherwise expressly excludable, exceed six months. Under these circumstances, this court does not perceive any violation of defendant’s right to due process.
The defendant also contends that CPL 30.30 (subd 5, par [c]) arbitrarily and capriciously deprives him of a speedy trial as guaranteed to others charged with misdemeanor offenses. He
There are any number of reasons why a particular criminal action may be commenced through a felony complaint and, in the process, end up being prosecuted as a misdemeanor. The evidence submitted either before the Grand Jury or at the felony hearing may prove to be legally insufficient or the facts of the alleged crime may not support indictment on the felony counts despite a good faith belief to the contrary by the District Attorney. Sometimes, a particular case may be sent down from a superior to a local criminal court for administrative purposes. At any rate, to grant defendant’s motion would discourage proceeding on the misdemeanor rather than the felony charge and would, more often than not, work to the disadvantage of defendants.
Consequently, the defendant’s motion is denied.