People v. Torres

The 180-day period for trial of charges against one who has served a request for final disposition thereof pursuant to the Interstate Agreement on Detainers is not tolled during the period of his detention in another county for prosecution on a charge pending in that county; some of that period will be excluded, however, if it may properly be attributed to the disposition of an omnibus motion made by the defendant with respect to the charges in the first county. The making of a suppression motion does not operate to deprive a defendant of his right to a prompt trial under the Interstate Agreement. Finally, it is not harmless error to refuse to suppress a statement concerning the death of a victim of a homicide obtained from a defendant in violation of his right to counsel when that statement, although in some respects similar to one made to and testified to by another witness, contains a more detailed and more damaging account of the event as well as of his incriminating conduct thereafter.

Defendant appeals from a judgment of conviction of the crimes of murder in the second degree, robbery in the first degree and criminal possession of a weapon in the second degree which arose out of the death of Sebastian Lopez on June 30, 1978. He contends that it was error not to have granted his motion to dismiss the prosecution because his trial had not been brought on within 180 days after his request for final disposition pursuant to the Interstate Agreement on Detainers (contained in CPL 580.20). Additionally, he claims that it was error for the court to have denied his motion to suppress testimony by Detective Bruno Saia, a New York City police officer, relating a statement obtained from defendant in violation of his right to counsel. The prosecution agrees that the statement should have been suppressed, but contends that its introduction was nonetheless harmless error in light of testimony given on trial by defendant’s sister, a contention accepted by the court below in affirming the judgment of conviction.

Concluding that this error was not harmless, we reverse the order of the Appellate Division. Because the

On the morning of June 30, 1978 the body of Sebastian Lopez, the victim of a fatal gunshot wound in the chest, was found lying on the ground on Clover Place in Queens County. On the basis of information obtained connecting defendant with an automobile driven by the victim and the sale of tools which had been in the vehicle, defendant within a few days became a suspect in the homicide investigation and was subsequently located in Trenton State Prison, New Jersey. A warrant was issued on August 23, 1978 for defendant’s arrest in connection with the homicide, and he was thereafter returned to Queens County on October 5, 1978 pursuant to the warrant.

Prior to his return, on August 29, 1978 defendant executed and filed an “Inmate’s Notice of Place of Imprisonment and Request for Disposition of Indictments, Informations and Complaints” pursuant to subdivision (a) of article III of the Interstate Agreement on Detainers, requesting disposition of the Queens County homicide charge within 180 days. The effect of that instrument was to start the running of the 180-day period within which his trial had thereafter to begin under the agreement.

Defendant’s motion to dismiss the prosecution for noncompliance with the statutory trial period was made on May 23, 1979, after the unsuccessful interposition of two other motions, one an omnibus motion pursuant to CPL article 255 made on November 13,1978, the other a motion made on April 5, 1979 to suppress his statement to Police Officer Saia. There is no conflict between the parties as to the inclusion or exclusion of various time intervals consumed by such things as adjournments at defendant’s request and delays by the People in producing defendant for arraignment, for the purpose of determining whether

We address first a contention by the People that defendant waived his right to seek dismissal of the charges against him for noncompliance by Queens County authorities with the mandatory 180-day time for trial. Both courts below held — Supreme Court as an alternative to its conclusion that the 180-day period had not expired when the motion to dismiss was made — that by making a motion on April 5, 1979 to suppress Detective Saia’s testimony the defendant waived any right he had under the Agreement on Detainers to dismissal of the prosecution, relying on People v White ( 33 AD2d 217 ). In White the court found that, by making a motion to suppress after the trial period fixed by the Agreement on Detainers had elapsed, the defendant had effected such a waiver, stating that (p 221) “[a] prisoner not brought to trial within the statutory period may not continue to participate in the proceedings indefinitely and then, at his pleasure, demand and be granted a dismissal of the indictment.”

The facts in a particular instance may warrant a factual determination that the defendant has elected not to assert or has abandoned his rights under the Agreement on Detainers and has chosen to proceed to disposition without reference thereto. Such a determination, however, is not warranted merely because the defendant takes steps to prepare for trial (by way of a suppression motion or otherwise), whether before or after the expiration of the statutory 180-day period. There is nothing necessarily inconsistent in proceeding to prepare for disposition by trial and in claiming the right to benefits under the Agreement on Detainers. It may be impossible practically to predict with any degree of certainty the expiration date of the 180-day period. Nor should the defendant’s exercise of the full panoply of his pretrial procedural rights be deterred by the

We reject also the prosecution’s attempt to bring the 84-day delay within the exception to the 180-day time requirement set out in subdivision (a) of article III of the agreement — “provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance”. In this case the causes for the adjournments were Suffolk County’s persistence in not returning defendant to Queens County for the proceedings pending against him there, coupled with the failure of the Queens County authorities to enforce the several orders for his return which they had obtained, neither of which constituted “good cause” within the contemplation of the Agreement on Detainers.

The fact that defendant’s detention in Suffolk County did not toll the running of the statutory trial period does not, however, mean that all of the 84 days are ineluctably to be included in the computation of the 180-day period. Defendant himself recognizes that when an omnibus motion is made a reasonable time for response by the prosecution may be excluded in the computation of the period of delay chargeable to the People following a request for disposition of outstanding charges (People v Chiofalo, 73 AD2d 673 ). Excludable, too, may be the period for decision of the motion by the Judge by whom it was heard. Thus, Supreme Court itself said here, “Some of the delay occasioned by the court’s considering and deciding the defendant’s motion is also excludable as being reasonable and necessary”. The period to be excluded is not, however, a normal time reasonably to be assigned to the disposition of a similar

No decision was made by either of the courts below as to what period following the making of defendant’s omnibus motion on November 13, 1978 and prior to the District Attorney’s first request on February 5, 1979 for an adjournment to procure a copy of the Grand Jury minutes should be charged against defendant as a reasonable and necessary delay brought about by his motion. The case must therefore be returned to the Appellate Division for a determination of this question (either by it initially or after remittal to the Supreme Court). If it is found that less than 10 days of that interval are chargeable to defendant as a consequence of his omnibus motion, then defendant’s motion to dismiss for failure of compliance with the Agreement on Detainers should be granted. On the other hand, if it is found that the period chargeable to defendant is 10 days or more, the case should be remitted for a new trial because of the error in denial of suppression of the testimony by Detective Saia as to defendant’s statement made to him in the absence of counsel (People v Rogers, 48 NY2d 167 ).

A comparison of the statement testified to by Detective Saia with that made by defendant to his sister and testified to by her demonstrates that the error in denial of suppression with the consequent receipt of the police officer’s testimony on trial was not harmless beyond a reasonable doubt. The statement given to Saia when the detective imperpiissibly questioned defendant in the absence of counsel at Trenton State Prison on August 22, 1978, included a detailed account of his activities on the night of the Lopez homicide and for some weeks following. It recited that on the night of the homicide after he had lost all his money gambling he walked the streets all night; that about 6:30 a.m. he saw Lopez standing next to a car with the door open and the motor running; that he then walked over to the victim, pulled out a .22 caliber revolver he was

Detective Saia testified that he made notes of the statement as it was given and read them back verbatim to defendant, asking that he correct any error if there was one. The witness said that he had consulted his notes before giving his testimony about the statement at the trial.

By contrast to the statement related by the police officer, defendant’s sister testified that when defendant was at her home a few weeks after the homicide he told her only that “he had killed — he was — he had no money, and he had — he was hungry and cold, and he was around — he told me it happened in Queens somewhere, or by Highland Park, and he got — he told me he got into the car with this man, and he asked him for his money, and the man — they struggled with a gun, and he shot the man, the gun went off, and he got out of the car, and he took the man out of the car and threw him, and got back in the car and left.”

Strikingly absent from the statement testified to by the sister is any explicit admission of a robbery or attempted robbery at gunpoint (sufficient to form the predicate for defendant’s conviction of felony murder), or of defendant’s possession and production of the weapon which brought about the death of Lopez, as well as of defendant’s after-the-event conduct by way of disposing of the gun and leaving the country under an assumed name — all of

For the reasons stated, the order of the Appellate Division should be reversed and the case remitted to it for further proceedings in accordance with this opinion.

Chief Judge Cooke and Judges Jasen, Wachtler, Meyer, Simons and Kaye concur.

Order reversed, etc.