People v. Bishop , 2 Misc. 2d 541 ( 1956 )

Hyman Barshay, J.

On March 24, 1955, this defendant was indicted for forgery in the second degree and petit larceny under indictment No. 551/55. The crimes were alleged to have been committed by him on September 8, 1954. At the time of the filing of this indictment, this defendant was incarcerated in the Tombs Prison in New York County awaiting the disposition of an indictment then pending against him in that county. These facts were known to the district attorney of Bangs County, who promptly filed a warrant with the warden of the institution where the defendant was detained. On April 8, 1955, a Judge of the Court of General Sessions sentenced the defendant to State prison for an indeterminate term. Thereafter, at the defendant’s request, he was returned to this court for arraignment on this indictment. He pleaded not guilty on March 8,1956.

The case was set for trial for March 21,1956. It was marked off the calendar and was restored on April 23, 1956. In the meantime, the defendant, by notice of motion returnable May 4, 1956, moved for a dismissal of this indictment for want of prosecution, pursuant to section 668 of the Code of Criminal Procedure. He urged that it was the prosecution’s burden to bring him to trial, regardless of the fact that he was incarcerated in another institution (People v. Prosser, 309 N. Y. 353). While this motion was pending, the defendant, represented by retained counsel, pleaded guilty to the crime of attempted forgery in the third degree and on July 9, 1956 the defendant was sentenced to a term of not less than one year and three months to not more than two years and six months, to State prison, the sentence to run concurrently with the sentence heretofore imposed upon him in the Court of General Sessions. The defendant thus waived any rights that may have accrued to him, if any, by the rule laid down in People v. Prosser (supra). The motion is, therefore, denied. Submit order.