The defendant in this case was brought to trial, and convicted, on an indictment six years after it had been returned by a grand jury. The Appellate Division condemned the delay, but concluded that the conviction should be affirmed. We take a different view. We condemn the delay and hold that it compels reversal of the conviction and dismissal of the indictment.
In January of 1946, the Grand Jury of Oswego County returned five indictments against the defendant and his brother. One of these indictments, No. 6792, charged him, in one count, with burglary and, in the second count, with grand larceny; another, No. 6793, charged him with carrying a loaded revolver concealed upon his person. On January 30, 1946, he was arraigned in Oswego County Court and pleaded not guilty to each of the five indictments. Soon after, however, when
The defendant was confined to Attica State Prison, and there he remained until 1952. In March of that year, he instituted a habeas corpus proceeding in the County Court of Wyoming county, claiming that, since one of his previous convictions was for a misdemeanor only, he had been improperly sentenced as a fourth felony offender. The court agreed with his position and, accordingly, on April 10, 1952, issued an order directing that he be returned to the Oswego County Court for resentencing. The Oswego County authorities, apparently doubting the power of the Wyoming County Court to make such an order, refused to recognize or obey it. The defendant then initiated a second habeas corpus proceeding in Wyoming County, which resulted in an order directing that he be released from prison on July 21, 1952, if the first order was not complied with by that date. (People ex rel. Prosser v. Martin, 208 Misc. 875.) This order was affirmed by the Appellate Division (281 App. Div. 1008) and by us (306 N.Y. 710); it was expressly noted that, by this time, "the term of imprisonment that might have been lawfully imposed [had] expired" (p. 712).
Confronted with that determination, the district attorney had the defendant returned to the Oswego County Court for rearraignment on one of the three indictments to which six years before he had pleaded not guilty. On that rearraignment, his counsel moved to dismiss the indictment on the ground that the defendant had been deprived of his right to a speedy trial. The county court judge — who in 1946 had sentenced the defendant as a fourth offender and who later had declined to comply with the Wyoming County Court orders directing his resentence — denied the motion. After some further delay, in part attributable to the defendant, the case proceeded to trial; he was convicted, upon two counts, of burglary and grand larceny and sentenced, as a prior felony offender, to imprisonment for consecutive indeterminate terms of from ten to twenty years on one count and of from five to ten years on the other.
The guarantee of a speedy trial — embodied in the United States Constitution and in the constitutions of many states — is found in section 8 of the New York Code of Criminal Procedure. In so many words, that section announces that "In a criminal action the defendant is entitled * * * To a speedy and public trial." Section 668 of the Code, providing the means by which the defendant may enforce his right, declares: "If a defendant, indicted for a crime whose trial has not been postponed upon his application, be not brought to trial at the next term of the court in which the indictment is triable, after it is found the court may, on application of the defendant, order the indictment to be dismissed, unless good cause to the contrary be shown."
The speedy trial guarantee, preventing undue delay between the time of indictment and trial, serves a threefold purpose. It protects the accused, if held in jail to await trial, against prolonged imprisonment; it relieves him of the anxiety and public suspicion attendant upon an untried accusation of crime; and, finally, like statutes of limitation, it prevents him from being "exposed to the hazard of a trial, after so great a lapse of time" that "the means of proving his innocence may not be within his reach" — as, for instance, by the loss of witnesses or the dulling of memory. (Report of Commissioners on Practice and Pleading , p. 342, quoted in McKinney's Cons. Laws of N. Y., Book 66, pt. 2, Code Crim. Pro. [1945 ed.], p. 543; see, also, United States v. Provoo, 17 F. R. D. 183, 198, 203 [U. S. Dist. Ct., D. Md.], affd. 350 U.S. 857.) Its benefits may be claimed, therefore, by any person under indictment, whether he be imprisoned to await trial on the pending charge, whether he be admitted to bail or whether he be a prisoner already serving a sentence in the same jurisdiction for a different crime. (See, e.g., People v. Corrado, 150 Misc. 787, 789-790; Frankel v. Woodrough, 7 F.2d 796, 798-799; Fulton v. State, 178 Ark. 841, 843-845; Harris v. State, 194 Md. 288, 296; State v. Smith, 10 N.J. 84, 93; Arrowsmith v. State, 131 Tenn. 480; Ex Parte Chalfant, 81 W.Va. 93; State v. Keefe, 17 Wyo. 227, 257-259;
It is clear, then, that Prosser was entitled to a speedy trial, and it is equally clear that he did not receive one. Although what amounts to an undue delay is "not fixed by the statute in days or months", depending as it does "upon the circumstances of each particular case" (People v. Hall, 51 App. Div. 57, 62; see Beavers v. Haubert, 198 U.S. 77, 87), it may not seriously be urged that the six-year lag in the present case was consistent with the mandate for a speedy trial.
Section 668 enables the court, if the defendant is not brought to trial "at the next term of the court in which the indictment is triable," to order a dismissal of the indictment, unless the defendant himself procured the postponement of the trial or unless the prosecution shows "good cause to the contrary". The district attorney contends that the defendant waived his right to a speedy trial and may not call upon the provisions of section 668, even though he sought no postponement and even though the prosecution failed to show "good cause" for the six-year inaction on its part. Underlying that position are both the premise that it is the accused who has the obligation of securing a speedy trial and the feeling that it would be unfair to permit a defendant to sit back and do nothing until the prosecutor notices the case for trial, and then claim that he should be discharged because of undue delay.
Although a number of jurisdictions have implementing provisions similar to section 668, the results reached by their courts have not been uniform.
In some states, it has been said that, if the defendant does not affirmatively and promptly make known his desire for a speedy trial, he may not be heard to complain. (See, e.g., Pietch v. United States, 110 F.2d 817, 819; McCandless v. District Court, 245 Iowa 599; State v. McTague, 173 Minn. 153; State ex rel. Davis v. Bayless, 38 Okla.Cr. 129.) As the Minnesota court expressed it, "the accused must go on record in the attitude of demanding a trial or resisting delay" or be deemed "to have waived the privilege." (State v. McTague, supra, 173 Minn. 153, 154-155.)
In other states, the courts have taken a different view; the burden of proceeding promptly is on the state, not on the defendant. (See, e.g., State v. Carrillo, 41 Ariz. 170, 172; State v. Chadwick, 150 Or. 645, 650; Flanary v. Commonwealth, 184 Va. 204; Ex Parte Chalfant, supra, 81 W.Va. 93.) In the words of the Oregon Supreme Court, "When the state sees fit to charge a defendant by indictment with the commission of a crime, it is equally the duty of the prosecutor to see that defendant is arraigned and enters a plea and speedily brought to trial, as it is to charge him with the offense in the first place". (State v. Chadwick, supra, 150 Or. 645, 650.)
The second view is the one that we find sounder and more persuasive. It is the state which initiates the action and it is the state which must see that the defendant is arraigned. It is likewise the state which has the duty of seeing that the defendant is speedily brought to trial.
The Report of the Commissioners on Practice and Pleading, who drafted section 668, further demonstrates that it was not designed to shift the responsibility for a prompt trial to the defendant, or to prevent him from taking advantage of slow moving or dilatory prosecutors. The fact is that some such remedy as a motion to dismiss was regarded as necessary because, under the then "existing practice," it all too frequently happened that an indictment was "kept forever suspended over the head of the defendant." (Report of the Commissioners on Practice and Pleading, op. cit., p. 341.) As the Commissioners pointed out, although the statute of limitations protects defendants from indictments returned too long after the commission of the crime, "yet, when an indictment is once found, there is no limitation of time, within which it must be brought to trial." (Ibid, p. 342.)
The sole purpose of section 668 when enacted, therefore, was to provide relief for persons denied a speedy trial (see People v. Beckwith, 2 N. Y. Crim. Rep. 29), and it imposed no obligation on the defendant affirmatively to seek such a trial or be deemed to have waived it.
This is not to say that a defendant may not consent to delay in bringing the indictment to trial and thereby waive his right. (See, e.g., People v. Perry, 196 Misc. 922; Pietch v. United States, supra, 110 F.2d 817, 819; State v. McTague, supra, 173 Minn. 153, 154-155; see, also, Notes, 129 A. L. R. 572; 44 L. R. A. [N. S.] 871.) Not only is such a waiver spelled out where both
In the light of what occurred in 1946, the defendant had no reason to believe that the remaining indictments would ever be tried. At the time he pleaded guilty, there appears to have been some sort of "compromise" whereby, in return for such a plea, the remaining charges were not to be pressed. (Cf. People v. Beckwith, supra, 2 N. Y. Crim. Rep. 29; People v. Smith, 2 N. Y. Crim. Rep. 45.) While at first he pleaded not guilty to all five indictments, he later changed his plea as to one indictment (No. 6793) and as to a count of another (No. 6792), after an off-the-record conference, suggested by the court, between defendant's assigned counsel, the district attorney and the presiding judge. The fact that defendant went to jail upon those indictments, did not prevent the prosecution from proceeding with the others (see Thomas v. People, 67 N.Y. 218), but the sentence of imprisonment for the very long term of from fifteen years to life seemingly sufficed as punishment for all the crimes charged. And, in explaining the reason for the six-year delay, the district attorney acknowledges that his predecessor in office "thought there was nothing to be gained by further prosecution". Certainly, if the district attorney did not plan any further action, the defendant could hardly have believed or expected that he would be brought to trial on the remaining indictments. The prosecutor did, it is true, change his mind in 1952, but it is quite evident that he did so only because the
In short, then, since there was an untoward delay of six years, without a waiver by defendant of his section 8 right to a speedy trial, and since the prosecution failed to show the slightest "good cause" for that delay, the trial judge should have granted defendant's motion and dismissed the indictment.
As for the asserted danger that a defendant may sit back and, if the prosecution fails for one reason or another to move the indictment for trial expeditiously, claim his right to a speedy trial and go free, it is somewhat less than real. Overlooked is the fact that the district attorney may at any time have the case placed on the calendar for a particular day. The defendant and his counsel will be in court and, if at that time the People seek a postponement and the defense fails to oppose or object, its failure will probably import consent to the ensuing delay and bar any later claim that defendant's right to a speedy trial had thereby been denied. The actual result of the present decision, therefore, is merely to impose upon the officers, charged with enforcing the law and who secured the indictment, the quite reasonable, far from burdensome, duty of noticing it for trial.
It may well be that adherence to the rule here announced will on occasion result in the discharge of one guilty of crime, but, as to that, we need but say, as we did in People v. Jelke (308 N.Y. 56, 68), that our decision "transcends the issue of * * * [a particular defendant's] guilt or the disposition of [a] particular case."
The judgments should be reversed and the indictment dismissed.
Judgments reversed, etc.