Summary
In People v. Godwin (2 A.D.2d 846) where a delay of less than two years in bringing a defendant to trial was held not to be prejudicial, and in the earlier case of People v. Hall (51 App. Div. 57) the courts indicated each case must be determined upon its own set of circumstances.
Summary of this case from People v. SerioOpinion
October 23, 1956
Order unanimously reversed and the motion of defendant to dismiss the indictment denied, without costs. The 21-month delay in bringing the defendant to trial may, in some circumstances, amount to a deprivation of his "guarantee of a speedy trial" ( People v. Prosser, 309 N.Y. 353, 356). But, as pointed out in the Prosser case, the question of delay is always a factual one, and there is no absolute single test. The district attorney of Bronx County lodged a warrant against him while he was in City Prison prior to his arraignment on the New York County indictments. This alone may not constitute a showing of good cause for the delay (Code Crim. Pro., § 668). Accordingly, this defendant, as distinguished from the defendant in the Prosser case, must have had "an awareness that the prosecution was being kept alive * * *. [and] that a trial would eventually be had" (p. 360), if only from the further action of the district attorney in having the Bronx County warrant lodged as a detainer at Elmira Reformatory. Moreover defendant, through his counsel, three times requested a postponement after the district attorney had stated that the People were ready for trial. This conduct spells out a waiver of defendant's right to a speedy trial. ( People v. Prosser, supra, p. 359.) Settle order on notice.
Concur — Peck, P.J., Breitel, Botein, Frank and Valente, JJ.