People v. Hernandez

Per Curiam.

In this closely contested case a chronology of the procedure points up the injustice. The incident giving rise to the information occurred on November 6,1958. There was an interval of seven and a half months before the information Avas filed on June 23, 1959. Two Aveeks later the defendant Avas arraigned for pleading, on July 7,1959. The case was set doAvn for trial on December 8, 1959, a further interval of six months. On that date the complaining Avitness did not appear and the defendant was discharged on his oavh recognizance. On September 14, 1960, a further interval of nine months, the District Attorney moved to restore the case, and the motion Avas granted and the case restored for October 6,1960. The interval between the alleged perpetration of the crime and the trial was a year and 11 months. During all of this period the defendant was in the jurisdiction, regularly working at .the place where the incident occurred, and no one attributes any of the delay to him.

The charge of assault in the third degree greiv out of a fight in a restaurant betAveen the complainant, a customer, and defendant, a Avaiter, in the establishment. Each blames the other for being the aggressor, and each claims that his own activity Avas in defense. At the opening of the trial defendant’s counsel sought an adjournment on the ground that the motion to restore AAas made ex parte, that he had no actual notice of the trial date and that the prior proceedings had led him to believe — what was entirely believable — that the prosecution had been abandoned. Despite the fact that the People had *58obtained five adjournments in the period between July 7, 1959, and December 8, 1959, this adjournment was refused. The refusal was based on the fact that the complainant was from Rhode Island and he would be inconvenienced by having to return.

Defendant’s excusable lack of preparation is evident from the fact that the police officers who came to the restaurant but made no arrest were not called. Their testimony was significant as the complainant testified that the defendant ran away to avoid arrest and defendant testified he was present and no arrest was made. An application to reopen the case to obtain this testimony was denied.

It is quite apparent that the peculiar history of this prosecution stems from the fact that the complainant was seeking to obtain a conviction to bolster a pending civil suit for damages. Of course, the fact that such a suit is pending, or even that that is the complainant’s motive, should not serve to relieve a defendant from the criminal consequences of his act. But the convenience of such a witness, even though he lives at a distance, should not serve to obscure the defendant’s rights.

The judgment of conviction should be set aside and a new trial ordered.