Opinion
April 10, 1959
Edward S. Silver, District Attorney ( David Diamond of counsel), for plaintiff.
Charles A. Schneider for defendant.
This is a motion by the defendant for an order dismissing the indictment on the ground that the defendant was denied a speedy trial pursuant to sections 668 and 669-a of the Code of Criminal Procedure because he was not speedily indicted.
The defendant was indicted on January 30, 1959 for the crimes of attempted robbery in the first degree, petit larceny, and assault in the first and second degrees, all alleged to have been committed on or about January 30, 1957. The defendant was released from jail on another charge on March 11, 1959 at which time he was arrested on a warrant issued in the instant case, and on March 12 was arraigned on the said indictment. On April 1, 1959 the case appeared on the Call Calendar in Part V of this court and was marked off the calendar at the request of the defendant for the purpose of making this motion and without waiving his rights to make the motion. It is the contention of the defendant that sections 668 and 669-a of the code apply because the defendant was not speedily indicted. We must also consider the Statute of Limitations (Code Crim. Pro., § 142) which permits an indictment within five years. The court is not of the opinion that sections 668 and 669-a supersede section 142 and, of course, the court is without power to legislate and cannot of itself repeal section 142 or shorten the period set forth therein.
The court is of the opinion that good cause has been shown for not bringing defendant to trial during the February Term of the court instead of the March Term under section 668 while section 669-a has no application whatever. Accordingly this motion to dismiss the indictment herein is denied.
District Attorney will enter order in conformity with this decision.