Opinion
28923
Decided April 24, 2002.
CINDY F. INTSCHERT, Esq., Jefferson County District Attorney Watertown, New York, Anthony Neddo, Esq. Assistant District Attorney, for the People.
DAVID RENZI., Esq., Jefferson County Public Defender, Watertown, New York, William Galvin, Esq., Assistant Public Defender, for the Defendant.
FACTS
The Defendant was arrested and detained on a Felony warrant signed on March 15, 2002. The Defendant voluntarily surrendered himself to Pennsylvania authorities on or about Saturday, March 22, 2002. He waived an extradition hearing on 3/25/2002 and he was picked up by the New York authorities and brought before this Court on 3/29/2002 for arraignment on charges of Penal Law 215.51.b (iii) (Felony) and 240.30(1) misdemeanor. The Court set bail and the case was scheduled for a preliminary hearing on 4/2/2002.
On 4/2/2002 the District Attorney requested a one day delay because a key witness — the victim — was not available until later that day and the People wanted an opportunity to interview and prepare this witness for the hearing. Defense Counsel was reluctant to allow another twenty four hours to lapse therefore opposing this request.
The People claimed that under C.P.L.180.80 they had another day to commence their hearing as the arraignment occurred on 3/29/2002 and with the intervening weekend counted the 144 hours period would not expire until the morning of 4/4/2002.
After a discussion concerning when the time commenced from which the 144 hours was calculated, the question was raised whether or not it stated on 3/23/2002 when the Defendant was taken into custody by the Pennsylvania authorities.
The Court decided that as the statute clearly states at C.P.L.180.80 a person who "since the time of his arrest or subsequent thereto, has been held in custody pending disposition of such Felony complaint, and who has been confirmed in such custody for a period of more than . . . one hundred forty-four hours without . . . commencement of a hearing thereon, the local Criminal Court must release him on his own recognizance".
The statute then lists a number of situations where the time is stayed none of which apply to the facts of this case save perhaps if the commencement of the hearing was "due to the Defendants request, action or condition, or occurred with his consent" (180.80 [1]). The evidence shows that the Defendant did appear on 3/25/2002 before a Pennsylvania Court and waived an extradition hearing but that it was not until 3/29/2002 that the local law agency transported him from Pennsylvania to be arraigned in this Court. There is no evidence the Defendant's conduct, then, delayed his being produced for appearance before this Court so a hearing could have been provided within 144 hours counting from either 3/23/2002 (custody) or 3/25/2002 (waiver of extradition).
In his Practice Commentary for section 180.80 Peter Preiser ( Mek Cons. Laws of NY. Book 11 A., Criminal Procedure Law sections 170 to 219, p. 174, states "[S]ignificantly. where custody commences by arrest, the hours start to tick away immediately and not simply upon commitment after arraignment. Accordingly, processing time and time awaiting arraignment are included in the computation."
The Court of Appeals in Hawkins v. Coughuin, 72 NY2d 158, 531 N.Y.S.2d 881, 527 N.E.2d 759, stated at p. 883.
The legislative history of Penal Law 70.30, however, belies petitioner's claim. That history establishes that the term "custody" was intended to mean "confinement" or "detention" under guard and not "constructive custody" such as release on parole or bail (see, People v. rel. Knox v. Kelly 126 AD2d 318, 320, 513 N.Y.S.2d 568). Former Penal Law 2193(1) referred specifically to "confinement" and "time spent" in named institutions. The Commission Staff Notes on the Proposed New York Penal Law, indicating that only "minor changes" were contemplated, state:
"The new provision eliminates the enumeration of institutions contained in the existing stature * * * and makes it clear that `jail time includes time spent in' custody no matter where the time was spent. This means that the Defendant will get credit for time spent, under arrest, in a police station or state police barracks" (proposed Penal Law 30.30[3], renum (sic) and added as 70.30[3], by L. 1965, ch. 1030, Commission Staff Notes, at 297 [1964]; see also, People ex rel. Knox v. Kelly, 126 AD2d 318, 513 N.Y.S.2d 568, supra; Hechtman, Practice Commentaries, McKinney's Cons. Law 70.30, at 252 [1975]). See, also People Ex Rel. Fancher y Wasser, 244 AD2d 79, 676 N.Y.S.2d 289.
The Court finds that C.P.L. section 180.80 states from the time a person is arrested for a Felony and has been confined "in such custody" for more than 120 hours or 144 hours and there has not been commenced a preliminary hearing by the People within that time frame due to no fault of a defendant who had demanded one. then the Defendant "must be released on his own recognizance."
It is clear that once custody commences by an arrest the time clock starts "to tick immediately" ( Preiser) which include "processing time" and "time awaiting arraignment" ( Preiser). The People Ex Rel. Fancher Court defined "custody" as including "`confinement or `detention under guard . . . time spent in' custody no matter where the time was spent including that time spent "in, a police station" or . . . barracks" idp. 883.
There is no question the Defendant once he was taken unto custody in Pennsylvania based on a felony warrant from New York he was "confined" in "detention" and "under guard" by Pennsylvania police until 3/29/2002 when he was picked up and transported back to New York by local law enforcement to be arraigned in this Court on 3/29/2002.
The Defense motion to release the Defendant on his own recognizance is granted as the People have failed to commence the preliminary hearing within the 144 hours required under C.P.L. section 180.80.