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#732 Third Department Round-Up for October 17, 2013

732 Post 10-17-13 Third Department October.pngNot long ago I analyzed a case very similar to this one, involving a District Attorney’s office that delayed beyond the statutory six months on an indictment. As a result, the indictment was dismissed outright. I remember stating that these sorts of things are quite rare. Well, here we have another instance of such a delay, again resulting in the dismissal of the indictment. So … maybe not as rare as I once thought.

732 Post-2 Washington County.pngCase #633 #105441
People v. Devino
Washington County-McKeighan Key Issue: He who hesitates loses REVERSED

A Washington County grand jury issued a four-count indictment against the defendant for the criminal sale and possession of controlled substances. An arrest warrant was issued against the defendant but, because the defendant, unbeknownst to the District Attorney’s office, had relocated to the far western portion of the state, he was unable to be located within six months of the issuance of the indictment.

Ultimately, the defendant “was arrested during a traffic stop in Chautauqua County, where he had been residing.” The defendant was arraigned on the indictment but later retained new counsel.

The defendant’s second attorney “made various omnibus motions” but “did not, at that time, effectively raise a statutory speedy trial claim under CPL 30.30.”

Apparently, even the third time was not the charm, because though the defendant’s third attorney ultimately secured a guilty plea for the defendant, the defendant nonetheless persevered in seeking to alert the court to his statutory speedy trial rights being violated by moving to withdraw his plea on this ground. The “defendant also contended that prior trial counsel had been ineffective in failing to make a pretrial motion to dismiss the indictment on this ground, rendering his plea involuntary and invalid.”

County Court denied the defendant’s motion and sentenced the defendant to three years in prison.

The defendant appealed.

As it turns out, the defendant was quite correct and his prior trial counsel did engage in ineffective assistance to the defendant. Furthermore, but for the prior attorney’s ineffective assistance of counsel, the defendant “would not have entered a guilty plea had counsel advised him that he had a meritorious speedy trial claim.”

What’s more, on appeal, “the People concede that they were not ready for trial within six months after the commencement of this felony criminal action … [and] indeed, they did not announce their readiness for trial until” almost eight months afterwards.

While the burden shifted “to the People to demonstrate that sufficient periods of the delay were excludable”, “the People’s fleeting description of the efforts made to locate the defendant fell far short of all reasonable efforts to enforce judicially issued warrants required to satisfy the due diligence standard.”

So, the defendant got out of jail free.

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