People v. Hankins

Larkin, J. (dissenting).

We respectfully dissent. The sole issue raised by the defendant on this appeal is his claim that the trial court erred in refusing to dismiss his indictment because he had been denied his right to a speedy trial (CPL 210.20, subd 1, par [g]; CPL 30.20, 30.30; Civil Rights Law, § 12). In support of defendant’s claim, he alleges a delay of approximately 44 months from the time of his arrest to his trial (approximately 41 months from the indictment to the trial).

Defendant alleges no prejudice, such as the loss of a witness, which would be a crucial factor in finding the delay to be intolerable (People v Johnson, 38 NY2d 271). Unlike the situation in People v Johnson (supra), where the delay was *479caused by a shortage of trial lawyers in the prosecutor’s office, the People were ready for trial at all times herein and so marked the case at every calendar call (see People ex rel. Franklin v Warden, 31 NY2d 498; People v Ganci, 27 NY2d 418). It further appears that defendant was incarcerated for only 5 of the 40 plus months between his arrest and trial and that a substantial portion of the delay was a result of the physical incapacity of a key prosecution witness, both of which are facts tending to excuse a delay (People v Kelly, 38 NY2d 633).

Although the defendant does not even allege prejudice to his case because of the delay, the majority hold that after he has been tried by a jury and found guilty we must reverse the judgment of conviction, dismiss the indictment and set the defendant free.

There must be some order in which criminal cases are brought to trial. Some defendants remain in jail to await trial while others are out on bail awaiting trial. The courts have heretofore held that priority in trial must go to jail cases (People v Kelly, supra). Thus, the prosecutor is on the horns of a dilemma: If he should fail to try the jail cases first, he runs the risk of having those persons so held released in their own recognizance or, at the worst, having their indictments dismissed. If he tries the jail cases first he runs the risk, as in the instant case, of a great delay before he can reach certain non-jail cases, as a result of which the non-jailed defendant seeks dismissal because of delay. The tremendous backlog of cases, the increase in crime and the crowded dockets of criminal court Judges all militate against the conclusion of the majority that a reversal and dismissal is mandated in the instant case.

The majority, in applying the five-pronged test suggested by the Court of Appeals in People v Taranovich (37 NY2d 442), hold that the first factor, the extent of the delay "weighs heavily in favor of the defendant” that the fifth factor "whether or not there is any indication that the defense has been impaired by reason of the delay” becomes irrelevant. The Court of Appeals stated in People v Taranovich (supra, p 445): "we hasten to add that no one factor or combination of the factors set forth below is necessarily decisive or determinative of the speedy trial claim, but rather the particular case must be considered in light of all the factors as they apply to it”. In our anxiety to protect the rights of the defendant, we should *480not lose sight of the rights of the public to expect and receive justice from our courts. That the accused will be brought to trial and, if found guilty, punished, is a basic tenet of our system of justice, and mere delay, without proof that such delay has affected the right or ability of the defendant to defend himself in the trial, is not, in our view, sufficient ground to violate this basic principle of justice.

Indeed, among the cases cited by the majority (People v Johnson, 38 NY2d 271, supra; People v Taranovich, supra; People ex rel. Franklin v Warden, 31 NY2d 498, supra; People v Purdy, 29 NY2d 800; People v Minicone, 28 NY2d 279; People v Ganci, 27 NY2d 418, supra) there is not one case where a conviction, after trial, was reversed because of delay alone. Therefore, the cases do not support, in our view, the drastic result obtained by the majority in this case. We would consider the allegations of the defendant in the instant case in the light of the approach of the United States Supreme Court as outlined in United States v Ewell (383 US 116, 120): "We cannot agree that the passage of 19 months between the original arrests and the hearings on the later indictments itself demonstrates a violation of the Sixth Amendment’s guarantee of a speedy trial. This guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself. However, in large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. Therefore, this Court has consistently been of the view that 'The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.’ Beavers v. Haubert, 198 U.S. 77, 87. 'Whether delay in completing a prosecution * * * amounts to an unconstitutional deprivation of rights depends upon the circumstances * * *. The delay must not be purposeful or oppressive’ Pollard v. United States, 352 U.S. 354, 361. '[T]he essential ingredient is orderly expedition and not mere speed.’ Smith v. United States, 360 U.S. 1,10.”

Applying the direction of the United States Supreme Court *481in Ewell (supra) and the directions of the Court of Appeals in Taranovich (supra), we determine that the defendant was not deprived of his due process right to a speedy trial and that the conviction should be affirmed.

Sweeney, J. P., and Kane, J., concur with Herlihy, J.; Mahoney and Larkin, JJ., dissent and vote to affirm in an opinion by Larkin, J.

Judgment reversed, on the law and the facts, and indictment dismissed.