People v. Bryant , 65 A.D.2d 333 ( 1978 )

OPINION OF THE COURT

Rabin, J.

This is an appeal from an order of the County Court, Westchester County (Martin, J.), dated April 24, 1978, which dismissed the indictment. The order should be reversed and the indictment reinstated.

The issue on appeal is whether a preindictment delay of almost seven months between the date of the alleged criminal transactions and the commencement of the criminal proceeding so violated the defendant’s due process rights as to require dismissal of the indictment.

Upon the defendant’s motion to dismiss the indictment, the County Court properly conducted a hearing (see People v Charette, 57 AD2d 594)^* at which the defendant and an undercover police officer testified. The defendant essentially testified that some time in October, 1976 a friend and two undercover police officers came to his house in Greenburgh, New York. The friend asked the defendant if he had any cocaine or knew where cocaine could be purchased. The defendant said that he did not have any and did not know where cocaine could be purchased, unless they went to New York City. The defendant agreed to accompany the three men to New York City. They drove to the vicinity of 180th Street and 8th Avenue, where the men gave the defendant money to purchase cocaine. The defendant completed the transaction and the four men then returned to Greenburgh. Although the defendant did not know the person who sold him the drugs, he had a fair recollection of his appearance.

Several days later, one of the officers again asked the defendant to complete a cocaine purchase and again the defendant complied. On this occasion, the defendant took the railroad to New York City and met the undercover officer upon his return to Greenburgh. As with the prior transaction, the defendant did not know the identity of the person who sold him the cocaine.

On cross-examination, the defendant gave a fairly detailed account of the events surrounding both transactions. This account included testimony that the transfer of the drugs from the defendant to the undercover officer on the second transaction was made at the apartment of the defendant’s sister and that she was present in the apartment while the officer took the package and tested the cocaine.

Only after his arrest did the defendant learn that his friend was a confidential police informant and that the other two men were undercover police officers. When the record is read as a whole, it appears that the defendant will seek to defeat a criminal prosecution by raising the affirmative defense of agency.

The undercover police officer who had participated in both purchases testified that he had worked as an undercover officer in varying capacities (e.g., narcotics, gambling, stolen property, etc.) for several years. The alleged transactions with the defendant were part of an ongoing narcotics investigation which continued in the general vicinity of the defendant’s residence for approximately six months subsequent to the alleged purchases. At the end of this period, the undercover officer submitted his papers to the office of the District Attorney. Approximately one month later, the defendant was indicted for two counts each of criminally selling a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree.

At the conclusion of the hearing, the court determined that the seven-month delay was not satisfactorily explained and that the defendant was prejudiced by the delay. Holding that the defendant’s due process right to a prompt prosecution was thus violated, the court dismissed the indictment. The order of dismissal should be reversed and the indictment reinstated.

It is well established that the Sixth Amendment right to a speedy trial protects a defendant from only that delay which occurs after the commencement of a criminal proceeding (see United States v Marion, 404 US 307; United States v Lovasco, 431 US 783). However, the instant delay occurred prior to the commencement of the criminal proceeding. Therefore, the constitutional guarantee of a speedy trial, and the cases decided thereunder, are entirely inapplicable to the disposition of the present case. Also irrelevant are those statutory provisions (see, e.g., CPL 30.20, 30.30) which seek to implement the more intangible safeguards of the Sixth Amendment.

Traditionally, the only redress for preindictment dely were the dictates of the various Statutes of Limitation, which in this case are essentially unlimited (see CPL 30.10, subd 2, par [a]). More recently, the due process clause has been used to further safeguard a defendant’s right to a speedy prosecution. It is upon the due process clause which the defendant must rely (cf. People v Alderson, 55 AD2d 977).

When analyzing due process claims, New York courts have generally employed a balancing test involving various factors which "must be evaluated on an ad hoc basis since no rigid precepts may be formulated which apply to each and every instance” (People v Taranovich, 37 NY2d 442, 445; see, also, People v Staley, 41 NY2d 789). In terms of a defendant’s due process right to a prompt prosecution after the occurrence of the criminal transaction, there are four factors of primary importance: (1) the length of the delay; (2) the reason for the delay; (3) the degree of actual prejudice to the defendant; and (4) the seriousness of the underlying offense. The New York approach is significantly broader than the Federal rule as enunciated by the Supreme Court of the United States. Whereas the New York courts consider actual prejudice as only one of several relevant factors, Federal courts require a showing of actual prejudice as a prerequisite to a dismissal of an indictment on the due process ground of delay between the criminal transaction and the commencement of a criminal proceeding (see United States v Lovasco, 431 US 783, supra).

Typical of these divergent approaches are those few New York cases which allow the dismissal of the indictment because of an unreasonably protracted delay, but in the absence of a showing of actual prejudice (see People v Singer, 44 NY2d 241; People v Staley, 41 NY2d 789, supra). The rationale of these cases is not that actual prejudice is not a vital consideration in determining whether a defendant’s preindictment due process rights have been violated, but rather, that the unexcused delay is so lengthy as to itself constitute a due process violation regardless of the additional element of prejudice (see People v Singer, supra). These cases implicitly balance the factors of delay and prejudice to the defendant and the prosecution, but conclude merely that the unexcused delay outweighs all other considerations. This result stems from the presumption of potential prejudice inherent in any lengthy delay, coupled with the recognition that an unduly long and unexcused delay in the prosecution of criminal offenders is contrary to various public policies (see People v Singer, supra, p 254).

When the above-enumerated criteria are analyzed in the present case, it is apparent that no single factor is so compelling as to be dispositive. However, when the factors are fully balanced, there is no question that the defendant’s due process rights have not been violated.

Generally, there is no "per se period beyond which a criminal prosecution may not be pursued” (People v Taranovich, 37 NY2d 442, 445, supra). The criminal Statute of Limitations provides only the outside limit on when a prosecution must be commenced and such period is largely irrelevant to the due process claim of preindictment delay. Here we are faced with a delay of only seven months between the date of the alleged transactions and the commencement of the criminal proceeding. This delay is considerably shorter than in those cases where the preindictment delay has constituted the sole basis for dismissing the indictment (see, e.g., People v Singer, 44 NY2d 241, supra, a 42-month delay; People v Staley, 41 NY2d 789, supra, a 31-month delay). Furthermore, it must be emphasized that few of the considerations which make a lengthy delay harmful are relevant to the present situation. For instance, the defendant was not incarcerated nor was his liberty or freedom of conduct inhibited in any way. The defendant was not subjected to police interrogation or to the threat of prosecution. In short, there was absolutely no interference, physical or psychological, with the defendant’s life style during the seven-month period. In this context, it is apparent that the period of delay was of fairly short duration.

The County Court’s conclusion that there was no good faith excuse for the delay must be rejected. In terms of a preindictment delay, the excuse need only be reasonable and made in good faith. Unlike a situation involving a postindictment delay, there is no stringent statutory requirement of demonstrating exceptional circumstances (CPL 30.30, subd 4, par [g]). In the instant situation of delay prior to the commencement of the criminal proceeding, the rigors of what constitute "exceptional circumstances” when applying the fairly inflexible time limitations of CPL 30.30 are neither applicable by the statute’s terms nor properly applicable by judicial extension. In this context, the dissent’s emphatic reliance on People v Washington (43 NY2d 772) is entirely misplaced. The Washington case involved a seven-month postindictment delay. Dismissal of the indictment resulted solely from the prosecution’s failure to comply with the New York statutory six-month rule (CPL 30.30). However, this rule has never been extended to the preaccusatory stage, and to blindly do so would improperly hinder prosecutorial discretion and thorough police work without clearly advancing any legitimate due process goal.

There is no question that in the present case, an indictment could have been filed immediately after the alleged criminal transactions. However, the transactions in this case were part of a more extensive narcotics investigation. After the October, 1976 transactions involving the defendant, the same confidential informant continued to supply information for at least one month. Although the general investigation involved a relatively large area of the Town of Greenburgh, the record indicates that the officer involved with this defendant had a more limited range of operations and was involved in subsequent transactions within a radius of several blocks of the defendant’s residence. It is of little significance whether the persons involved in the subsequent transactions were known to the defendant. In recognition of the relative closeness of the drug culture and in view of the continuing investigation in the immediate vicinity of the defendant’s residence, it must be concluded that a premature indictment would have necessarily encumbered the ongoing investigation and could have possibly jeopardized the lives of the undercover officers and informants who participated in that investigation.

The County Court’s conclusion that it was not necessary to delay the indictment to preserve the undercover officer’s "cover” is of little merit. Despite his prior exposure as an undercover officer, he apparently was still an effective operative in the instant investigation.

The timing of a criminal prosecution is necessarily left to the sound discretion of the District Attorney. Similarly, the conduct of a police investigation is necessarily left to the discretion of the police. Just as it is improper to impose an inflexible burden of immediate prosecution in the absence of a clear abuse, it is improper to second guess the exercise of discretion by our law enforcement officials as to when a criminal investigation should be terminated and indictments filed. In the instant case, it is plain that the seven-month delay was not purposely undertaken to improperly "gain tactical advantage over the accused” (see United States v Marion, 404 US 307, 324, supra). Rather, the delay in the instant case was made in good faith and constitutes a reasonable excuse.

Nor do we agree that the defendant suffered any real prejudice from the delay. In view of the fairly short period of delay, the factor of actual prejudice assumes a role of critical importance (cf. People v Taranovich, 37 NY2d 442, supra). Although the defendant could not remember the specific dates of the alleged transactions, and could not recall the specific identity of people he had casually encountered (e.g., the train conductor on the day of the second purchase), the defendant’s over-all recollection of the actual events of the two days was reasonably complete and lucid. Based upon the defendant’s detailed account of the two transactions, it is apparent that the two witnesses who can most aid in the defendant’s defense (i.e., the confidential informant and the defendant’s sister) are well known to the defendant. Nor was it demonstrated that the passage of time will preclude the discovery of other possible witnesses. For instance, the defendant testified that he had a fair recollection of one of the persons who sold the cocaine to him. Significantly, the defendant has failed to demonstrate how the failure to recall certain facts will actually prejudice his defense (see People v Alderson, 55 AD2d 977, supra). In view of the defendant’s ability to recall the events of the two transactions and the availability of key witnesses, it must be concluded that there was no significant degree of actual prejudice occasioned by the delay.

Consideration of the nature of the offense further requires that the relatively short preaccusatory delay be excused. The Legislature has determined that the sale of cocaine constitutes a grave risk to society and has imposed severe penal sanctions (see, generally, Penal Law, arts 70, 220) with an unlimited Statute of Limitations (CPL 30.10, subd 2, par [a]). Consequently, persons who commit such crimes must be fully and relentlessly prosecuted.

Upon the above analysis, it is plain that there was no due process violation of the defendant’s right to a prompt prosecution. The delay was not particularly long and was justified by a good faith, reasonable excuse. The defendant failed to establish any significant degree of actual prejudice resulting from the delay. The preindictment delay in this case was not so substantial as to justify defeating the public’s interest in prosecuting the defendant for the commission of relatively serious crimes. Therefore, the order appealed from should be reversed and the indictment should be reinstated.

* The dissent’s reference to People v Townsend (38 AD 2d 569) is wholly unwarranted. The holding in Townsend does no more than require that a hearing be conducted when a defendant raises a bona fide due process claim. The issue now before us is not whether a hearing should have been conducted, but whether, based upon the evidence introduced at the hearing, as applied to the controlling legal principles, the indictment should have been dismissed. People v Townsend is irrelevant to this inquiry. We note, however, that although Townsend involved a delay of almost one year, upon remand it was determined that there was no due process violation and the judgment of conviction was affirmed without opinion (41 AD2d 934).