Opinion
04/0161
Decided May 25, 2005.
Defendant appeals from a judgment of the Webster Town Court (Corretore, J.), convicting him, after a bench trial, of driving while ability impaired (Vehicle and Traffic Law § 1192) and fining him $300.
MICHAEL C. GREEN, ESQ., Monroe County District Attorney, Steven X. O'Brien, Esq., of Counsel, Assistant District Attorney, Rochester, New York, for the People.
FIANDACH FIANDACH, Terence McCarthy, Esq., of Counsel, Rochester, New York, for the Appellant.
Defendant was arrested and charged with driving while intoxicated in connection with an incident that occurred in the Town of Webster on June 8, 2002. A suppression (probable cause and Huntley) hearing was held on September 12, 2002, and the matter was scheduled for a bench trial on December 12, 2002. Sometime in early December prior to the trial date, the parties entered into a stipulation agreeing that the proof adduced at the suppression hearing, as contained in the transcript of that hearing, would serve as the trial proof, upon which the court's would render its verdict. On June 29, 2004, more than 1½ years later, the court rendered its verdict, labeled a "decision", in which it found defendant guilty of driving while ability impaired. Thereafter, defendant moved to set aside the verdict on the ground that the court failed to render a verdict after trial in a timely manner. The People did not file any opposition papers. The court, by written decision dated October 13, 2004, denied defendant's motion to set aside the verdict. The court stated that after the suppression hearing was conducted and the matter was already scheduled for trial, the parties agreed to have the court use the hearing testimony as the trial testimony. The court acknowledged that it acquiesced in this arrangement, but noted in its decision that the difficulty in that arrangement was "that the testimony at the suppression hearing was heard for a purpose other than determining the Defendant's guilt or innocence. Further, some time had already passed after the hearing, substantially dulling, if not erasing, use of recollected testimony in making the determination". The court noted that the transcript "became the primary, and indeed in this case realistically the sole, source of the Court's determination". The court noted that, because it had no independent recollection of the hearing testimony, "the demeanor of the witnesses, was not a part of the determination". Essentially, the transcript prevented "not only fresh recollection of the case but also requir[ed] a determination of guilt or innocence, using evidence adduced for another purpose". The court readily acknowledged that "the decision in this matter should have been made substantially earlier than as the case; the delay in this Decision was beyond that which it should have reasonably been". The court rationalized, however, that the hearing testimony was already "stale" by the time it was asked to use it for purposes of determining defendant's guilt or innocence at trial, so "the Defendant could not be significantly prejudiced by the Court's delay in rendering a decision". It went on to rationalize that defendant "in essence consented to the delay by requesting a trial determination on the hearing evidence some time after the conclusion of the hearing". The court then rendered its verdict of guilty of a lesser charge, noting that defendant "received all consideration from the Court in his favor, over and above that which must be accorded any defendant".
There is no merit to the People's contention that this appeal should be dismissed as untimely. The record shows that the notice of appeal, dated November 10, 2004, was stamped "filed" with the Webster Town Clerk's Office on November 17, 2004, with the Monroe Supreme and County Courts on November 22, 2004, and with the Monroe County Clerk's Office on December 14, 2004. The certificate of disposition, signed by Judge Corretore is dated November 17, 2004, although it recites a disposition date of October 13, 2004. The parties' stipulation to the record on appeal sets forth the documents comprising the record and recites: "Notice of Appeal filed November 22, 2004" and "The Certificate of Conviction, dated November 17th". The notice of appeal is deemed timely filed (CPL 460.10).
Turning to the merits, defendant contends that the court erred in denying his motion to dismiss the driving while impaired conviction on the ground that the trial court failed to render a verdict after the bench trial in a timely manner. The People refute that contention and argue that, given the facts and circumstance of the case, there is no indication in the record when the court started its deliberations and it cannot be assumed that the court did so on the originally scheduled trial date.
CPL article 350 governs the conduct of a bench trial in a local criminal court. CPL 350.10 (3) (d) "lays down a statutory mandate as to the rendering of verdicts in nonjury trials" ( People v. South, 41 NY2 451, 454 [1977]). Like its counterpart in jury trials (CPL article 310), it is expected and required that a judge in a nonjury trial will render his verdict within a reasonable time ( id.). What is "reasonable" depends on the circumstances of the individual case but there "will come a point, however, beyond which delay becomes unreasonable as a matter of law" ( id.).
In South, the trial court conducted a four-hour trial of a defendant who was charged with assault in the third degree. It rendered its verdict 58 days later, finding defendant guilty.
The Court of Appeals reversed and dismissed the information, finding the delay of 58 to be unreasonable as a matter of law. It found "no sufficient explanation or warrant for the long delay from the close of the four-hour trial during the evening of October 2, 1973 to the following November 29 when the verdict of guilty of rendered" ( id.). It further noted that defendant did not consent to the delay and no theory of justification for the delay was advanced by the People. The court noted that there were factors to consider in determining whether the delay is reasonable. Some of those factors include, whether there were complicated issues of fact or law presented, whether any evidentiary questions remained unresolved, whether there were any posttrial submissions offered or sought, whether the court rendered an oral or written decision and whether there were administrative impediments to the trial court's rendering an earlier decision ( id.).
In People v. Hryn ( 144 AD2d 961), the Appellate Division, Fourth Department, reversed a defendant's conviction for second degree assault for recklessly shooting a police officer during a melee, and dismissed the indictment where, after a bench trial, the trial judge delayed 7½ months in rendering his verdict. The court reversed, stating that the delay was "completely unjustified", noting that the case "did not involve a complicated factual situation or difficult issues of law" ( id.). Additionally, the court noted that "no evidentiary questions remained to be resolved after trial and no posttrial submissions were sought or offered" and "[a]lthough the court wrote a long and detailed memorandum decision, it was not required to do so. It merely had `to render a verdict of "guilty" or "not guilty"'" ( id., quoting People v. South, 41 NY2d at 454). The court also rejected the People contention that defendant failed to preserved the issue for review because he did not object to the trial court's delay in rendering a verdict. It noted that "[t]he defendant has no duty to request the court to render a verdict" ( id. at 961-962). In Hryn, the trial court reserved decision but did not indicate when its verdict would be forthcoming. The court held that defendant was not obligated to object at that point in time because there was no indication that a delay of significant duration would ensue. The court also rejected the People's assertion that defendant waived his objection by failing to request a verdict as the period of delay wore on, noting "[i]t would be unrealistic to require a defendant to move the court to render a decision or bring a CPLR article 78 proceeding to compel a verdict. Such maneuver, apart from engendering even more delay, would merely serve to antagonize the court" ( id.).
In People v. Maldonado ( 152 AD2d 707), a delay of 67 days was found to unreasonable, after a brief trial. Similarly, a disorderly conduct conviction was set aside in People v. O'Brien ( 86 Misc 2d 139), where there was a delay in rendering a verdict by the village justice of 35 days.
Here, the delay in rendering the verdict was a period of more than 1½ years from the time the parties stipulated that the hearing transcript would also be the trial transcript in early December 2002 and the time the trial court rendered its verdict on June 29, 2004. Defendant preserved the issue for appellate review by bringing a motion to set aside the verdict within days after the court rendered its verdict. Defendant had no obligation to request or move the trial court to render a decision. Nor was he required to bring a CPL article 78 proceeding to compel a verdict. Further, when the parties stipulated that the hearing transcript would also serve as the trial testimony, defendant had no obligation to request the trial court to set a date for its verdict. In this case, no complicated factual or legal issues were presented. There were no evidentiary questions that remained unresolved and no posttrial submissions were sought or offered. The trial court wrote a brief decision in finding defendant guilty of the lesser included offense of driving while ability impaired, but was merely required to render a verdict of "guilty" or "not guilty" without any written decision. Moreover, the trial court, in its decision denying defendant's motion to set aside the verdict, bluntly acknowledged that "the decision in this matter should have been made substantially earlier than was the case; the delay in this Decision was beyond that which it should have reasonably been". Given the trial court's candid admission of its unjustified delay in rendering a verdict, this court finds incredulous the People's position that it cannot actually be determined when and for how long the trial court actually deliberated.
This court concludes that the delay in the verdict was unreasonable as a matter of law. Therefore, the judgment of conviction is reversed and the accusatory instrument is dismissed.
This constitutes the decision and order of the court.