Opinion
Argued November 20, 1984
Decided December 27, 1984
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Frederic S. Berman, J.
Barry Stendig and William E. Hellerstein for appellant.
Robert M. Morgenthau, District Attorney ( Oscar Garcia-Rivera and Robert M. Pitler of counsel), for respondent.
Defendant has been convicted of attempted murder in the second degree, assault in the second degree and criminal possession of a weapon in the second degree. The charges arose out of a barroom incident during which defendant approached a seated patron without preface and grabbed him about the neck in a hammerlock. As he did so, he placed a revolver against the victim's forehead and pulled the trigger. Fortunately, the victim deflected the gun while struggling to get free and the shot injured him only in one eye and one ear. Defendant fired two other shots before the gun emptied. One bullet lodged in the ceiling and the other struck the victim in the thigh.
Defendant has not challenged the finding of guilt on this appeal and the only issue before us is procedural, whether a defendant may, with the permission of the court, defer a motion to dismiss based upon speedy trial grounds until after entry of a guilty verdict. The question arises because when the Calendar Judge assigned this case to a trial part counsel announced that defendant wished to move to dismiss the indictment based upon denial of his statutory right to a speedy trial (CPL 30.30, subd 1, par [a]). The Calendar Judge deferred the motion and counsel submitted a written motion after the trial. The Judge hearing the motion at that time held the procedure proper but ruled against defendant on the merits of his claim. The Appellate Division affirmed the conviction, rejecting defendant's speedy trial claim without comment, but remanded the matter for resentencing ( 97 A.D.2d 718). Defendant has been resentenced and the order of the Appellate Division is now before us for review.
The Criminal Procedure Law provides that a motion to dismiss an indictment based upon a claimed denial of the right to a speedy trial must be made prior to the commencement of trial or the entry of a plea of guilty (CPL 210.20, subd 1, par [g]; subd 2). An oral application is not sufficient (see People v Key, 45 N.Y.2d 111, 116; People v De Rosa, 42 N.Y.2d 872, 873). The motion must be made in writing and upon reasonable notice to the People (CPL 210.45, subd 1). Failure to follow the statutory procedure results in a waiver of the claim ( People v Key, supra; People v De Rosa, supra; People v Adams, 38 N.Y.2d 605; see, also, People v Selby, 53 A.D.2d 878, affd 43 N.Y.2d 791). Concededly, defendant's pretrial motion was not in writing. Indeed, without a transcript of the proceedings before the Calendar Judge, it is not clear whether counsel made an oral motion to dismiss at that time or merely stated his intentions. Because the motion was not timely and was not made in writing upon reasonable notice to the People, defendant waived his right to a dismissal on speedy trial grounds.
Defendant raises several points in opposition to a finding of waiver. First, he contends that the provisions of CPL 255.20 (subd 3) are applicable, thereby permitting the court to waive time requirements for certain motions. CPL 210.20 (subd 2) provides, however, that any motion except a motion based upon denial of the right to speedy trial should be made in the period specified in CPL 255.20 and, in the second sentence which does not refer to 255.20, that a speedy trial motion "must be made prior to the commencement of trial or entry of a plea of guilty."
Under standard rules of construction, whenever there is a general and a particular provision in the same statute, the general does not overrule the particular but applies only where the particular provision is inapplicable ( People v Mobil Oil Corp., 48 N.Y.2d 192, 200; McKinney's Cons Laws of NY, Book 1, Statutes, § 238). Inasmuch as the specific language of the statute directs that speedy trial motions must be made before commencement of trial or entry of a plea of guilty, neither the more general time provisions of 255.20 referred to in the first sentence of CPL 210.20 (subd 2) or the definitional section of CPL 255.10 should be read to expand the particular time provision for speedy trial motions.
Moreover, we find unpersuasive the contention in the dissent that the statute originally permitted the speedy trial motion to be made after the commencement of trial, and its view that no change was intended by the amendment (see dissenting opn, pp 209-210). When the Legislature amended the first sentence of CPL 210.20 (subd 2) to remove the time requirements for CPL 210.20 motions generally, it substituted a reference to CPL 255.20 and its discretionary provisions. When it amended the subdivision to delete the third sentence to remove the reference to the discretion of the court to entertain speedy trial motions after the commencement of trial, it did not add any similar reference to CPL 255.20 but left the statute in its present form. In the absence of any such reference, it may be assumed that the Legislature intended to distinguish speedy trial motions and that they intended that the motion should be made before trial commenced or a guilty plea was entered.
There is good reason for the distinction. The Legislature's purpose in enacting CPL 255.20 was to regulate pretrial proceedings by requiring a single omnibus motion to be made promptly after arraignment and thus to avoid the proliferation experienced under prior procedure in which a defendant could bombard the courts and Judges with dilatory tactics continuing right up to the eve of trial (see 1972 Report of N Y Judicial Conference Advisory Committee on the CPL, 1973 McKinney's Session Laws of NY, pp 2076-2077). A 45-day period to make the motion was deemed reasonable and CPL 255.20 offered some flexibility for motions dependent on the outcome of prior motions or necessarily delayed for other good cause. Motions to dismiss on speedy trial grounds were exempt from the provisions of CPL 255.20, however, because it would be highly unusual that the statutory period of delay could elapse within 45 days of arraignment. Thus, although subdivision 2 expressly incorporated the 45-day time period and the flexibility of CPL 255.20 into the statute for all other motions, it did not do so for speedy trial motions. They may be made at any time before commencement of trial or entry of a plea of guilty.
Moreover there are several reasons why speedy trial motions, unlike other pretrial motions, should be made before commencement of trial. First, the unexcused period of delay, six months or 90 days as the case may be, from the date of the filing of an accusatory instrument until the District Attorney announces the indictment ready for trial, are facts of record fully known or knowable to the defendant before trial and it is difficult to conceive of anything that could change to improve or alter the validity of defendant's claim after the District Attorney announces his readiness on the record. Second, most pretrial motions and many of those listed in CPL 210.20 relate to defects in the prior proceedings which may affect the validity of the indictment, bar the prosecution or, as in the case of discovery and suppression, influence the ultimate determination of guilt or innocence (CPL 210.20, subd 1; 255.10, subd 1). Thus, as in the illustrations cited by the dissent, there may be good reason to grant relief after trial has commenced, even up to the pronouncement of sentence. The issues involved in a speedy trial motion, however, do not implicate such questions and there is no reason to permit motions during or after trial to ensure that the verdict is not infirm. Third, it should be observed that a 30.30 motion is a matter of legislative grace. The statutory right to dismissal granted a defendant if the prosecutor is not ready for trial, unlike a constitutional claim for denial of a speedy trial, is based upon policy reasons and does not require consideration of prejudice to defendant (see Barker v Wingo, 407 U.S. 514, 530; People v Taranovich, 37 N.Y.2d 442, 445). If defendant is to avail himself of the benefits of CPL 30.30 then he should comply with the statutory requirements (see People v Sobotker, 61 N.Y.2d 44). It makes little sense to squander the resources of the courts and the time and efforts of counsel, witnesses and jurors on a fool's errand to determine guilt when the verdict may subsequently be vacated because of prosecutorial delay.
But even if we were to incorporate the provisions of CPL 255.20 and permit a court to entertain the motion for good cause at any time up to the imposition of sentence, we would necessarily find that the court abused its discretion as a matter of law in entertaining this motion (though it did not purport to exercise its discretion) because the record is devoid of any reason to grant defendant an extension of time to move. His counsel was well aware that he had grounds for the motion at least as early as October 9, 18 days before the case was sent to trial, and yet failed to submit it until after the trial. The only recognizable excuse for this failure was a one-day illness of defendant's counsel on October 22. Manifestly, the motion could have been made before the commencement of trial and nothing in the record suggests any reason why it was not or why defendant should be excused for his failure to follow the explicit language of the statute as our decisions require (see People v Key, 45 N.Y.2d 111, supra; People v De Rosa, 42 N.Y.2d 872, supra). Unquestionably, he had an absolute right to make the motion on October 27, as the dissent notes. He also had the responsibility to make it and the court's action in deferring the motion could not be characterized as "good cause" in any sense warranting an extension of counsel's time to act under the provisions of CPL 255.20.
Defendant next contends that his rights have been preserved because the District Attorney failed to object to the Calendar Judge's deferral of the motion until after trial on October 27. We disagree.
Generally, parties to litigation, even parties to a criminal prosecution, may adopt their own rules at trial by the simple expedient of failing to object to evidence offered or to except to instructions given the jury (see Matter of Brockway v Monroe, 59 N.Y.2d 179, 188; Martin v City of Cohoes, 37 N.Y.2d 162; cf. Sega v State of New York, 60 N.Y.2d 183, 190, n 2). Thus, there are decisions which have held the People bound by their failure to object to rulings of the court although the omission resulted in the imposition of a higher standard of proof upon them (see People v Malagon, 50 N.Y.2d 954; People v Bell, 48 N.Y.2d 913). Similarly, there are any number of statutory pretrial rights available to a criminal defendant which may be lost by inaction (e.g., the right to a preliminary hearing [CPL 180.10]; the right in some instances to testify before the Grand Jury [CPL 190.50, subd 5]; the right to move for discovery [CPL 240.30]; etc.). The burden rests on the parties to protect their own rights by asserting them at the time and in the manner that the Legislature prescribes. Thus, we attribute no significance in this case to the District Attorney's failure to object on October 27 to the actions of the Calendar Judge. The statute places the initiative on the defendant to proceed as it directs and even if counsel did assert his claim orally before trial, there was no motion before the court or under consideration by it which called for opposition by the People. They objected when the written motion was submitted after the trial and that was sufficient. The requirements of the statute are based upon the strong public policy to further orderly trial procedures and preserve scarce trial resources. Neither the court nor the parties may restructure the statute to adopt a procedure that is more convenient for them at the moment by waiving its clear provisions (see People v Selikoff, 35 N.Y.2d 227, 238, cert den 419 U.S. 1122; People v Lopez, 28 N.Y.2d 148, 152) or agreeing to preserve defendant's rights (see People v O'Brien, 56 N.Y.2d 1009; People v Di Raffaele, 55 N.Y.2d 234)
Accordingly, the order of the Appellate Division should be affirmed.
Chief Judge COOKE and Judges JASEN, JONES and WACHTLER concur with Judge SIMONS; Judge MEYER dissents and votes to reverse in a separate opinion in which Judge KAYE concurs.
Order affirmed.
Because, in my view, the majority's restrictive reading of CPL 210.20 (subd 2) is clearly inconsistent with the intent of the Legislature, I respectfully dissent.
Article 255 deals with pretrial motions. CPL 255.10 (subd 1, par [a]) defines a pretrial motion "as used in this article" as "any motion by a defendant which seeks an order of the court: (a) dismissing an indictment pursuant to article 210". CPL 210.20 (subd 1, par [g]) provides that "the superior court may, upon motion of the defendant, dismiss such indictment * * * upon the ground that: * * * (g) The defendant has been denied the right to a speedy trial".
CPL 255.20 (subd 1) directs that, "Except as otherwise expressly provided by law * * * all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment." The last clause of that sentence gives a superior court Judge the power to fix a time beyond 45 days and imposes no limitation on the power other than that defendant's application be made prior to entry of judgment (i.e., imposition of sentence [CPL 1.20, subd 15]).
In addition to the discretion thus vested in the Trial Judge with respect to a pretrial motion, the second sentence of CPL 255.20 (subd 3) expressly provides that, "Any other pre-trial motion made after the forty-five day period may be summarily denied, but the court, in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose of the motion on the merits." That provision unmistakably vests the Trial Judge with discretion "at any time before sentence, [to] entertain and dispose of the motion on the merits." Here the affidavit of the Assistant District Attorney acknowledges that defendant's counsel indicated on October 9, 1981 in the calendar part that he intended to file a 30.30 motion, and that on October 27, 1981, when the case was assigned to a trial part, "the calendar judge indicated that any 30.30 motion should be litigated after the trial, if necessary." After trial, defendant's counsel made a written motion pursuant to CPL 30.20 and 30.30 to dismiss for lack of a speedy trial. The Calendar Judge considered the application on the merits and denied it, and the Appellate Division affirmed.
To be distinguished is the first sentence of the subdivision, which mandates that the Trial Judge consider appropriate pretrial motions if its conditions are met. Its language is: "Notwithstanding the provisions of subdivisions one and two hereof, the court must entertain and decide on its merits, at any time before the end of the trial, any appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified in subdivision one of this section or included within the single set of motion papers as required by subdivision two."
The majority now affirms, not on the merits, but on the ground that the Calendar Judge had no authority to consider the merits. It does so on the basis of CPL 210.20 (subd 2), which provides that, "A motion pursuant to this section, except a motion pursuant to paragraph (g) of subdivision one, should be made within the period provided in section 255.20. A motion made pursuant to paragraph (g) of subdivision one must be made prior to the commencement of trial or entry of a plea of guilty." It does so by reading the last sentence of that subdivision as an absolute time bar, notwithstanding that the reference to CPL 255.20 in the first sentence makes clear beyond peradventure that the Legislature was aware of both the provision for timely motions in CPL 255.20 (subd 1) and also of the discretion to consider untimely motions that is vested in the Trial Judge by both the first sentence of CPL 255.20 (subd 1) and the second sentence of CPL 255.20 (subd 3). But while the first sentence of CPL 210.20 (subd 2) expressly provides by law that a speedy trial motion need not be made within 45 days (because, of course, it cannot be), nothing in its second sentence or in the second sentence of CPL 255.20 (subd 3) or in the first sentence of CPL 255.20 (subd 1) indicates in any way that the discretion granted by the latter two provisions was not to apply to a speedy trial motion. The majority's concern with which is the general and which specific is thus misguided, for that rule applies only where the two provisions are incompatible ( People v McLaughlin, 93 Misc.2d 980, 985-986; see Levine v Bornstein, 4 N.Y.2d 241; People ex rel. Knoblauch v Warden, 216 N.Y. 154, 156-157; McKinney's Cons Laws of NY, Book 1, Statutes, §§ 97, 98, 238) and, as the foregoing discussion shows, there is no conflict between the authorization granted by CPL 255.20 (subd 3) to consider untimely motions and the reference in CPL 210.20 (subd 2) to CPL 255.20, which simply describes when a motion to dismiss on speedy trial grounds will be timely.
The legislative history contains no such indication either (see 1972 Report of N Y Judicial Conference Advisory Committee on the CPL, reprinted in 1973 McKinney's Session Laws of NY, pp 2076-2077; 1973 Report of N Y Judicial Conference Advisory Committee, reprinted in 1973 McKinney's Session Laws of NY, pp 2080-2081; 1974 Report of N Y Judicial Conference Advisory Committee, reprinted in 1974 McKinney's Session Laws of NY, p 1828). Those Reports show that the Committee's proposal was made because "[t]he proliferation of such motions, the possibility that different judges may be required to decide different motions in the same case, and the possibility that motions may be filed late for the purpose of delaying trial, all combine to create a situation needing a solution." Nothing in the Reports suggests that it was intended to except speedy trial motions from the discretion granted by CPL 255.20 (subds 1, 3), nor is there anything in the legislative history of CPL 210.20 (subd 2) to suggest that its second sentence was intended to do more than fix the time within which a speedy trial motion would be timely. Moreover, as is developed below, the form of the amendment made by chapter 763 of the Laws of 1974 to CPL 210.20 clearly demonstrates the contrary.
Indeed, the contrary is made indelibly clear when one tracks the language of CPL 210.20. Chapter 763 of the Laws of 1974 inserted article 255 into the Criminal Procedure Law. Prior to the adoption of that statute, CPL 210.20 (subd 2) contained three sentences. The first fixed the period of time for motions other than for dismissal on speedy trial grounds. The second (which read exactly as the present second sentence) provided that the latter motion "must be made prior to the commencement of trial or entry of a plea of guilty." The third, however, in language almost identical with that of the second sentence of CPL 255.20 (subd 3) gave the Trial Judge discretion to entertain motions for dismissal on various grounds, including speedy trial violations, "at any time before sentence." Only because of the enactment of CPL 255.20 (subd 3) which consolidated in one provision the power to entertain all untimely "pretrial" motions was the third sentence of CPL 210.20 (subd 2) deleted, as was the analogous language in CPL 170.30 (subd 2) relating to motions to dismiss an information on grounds inclusive of denial of the right to a speedy trial, in CPL 240.30, relating to discovery, and in CPL 200.90, relating to bills of particulars.
The sentence read: "A motion made thereafter may be summarily denied, but the court, in the interest of justice and for good cause shown, may, in its discretion, entertain and dispose of the motion on the merits at any time before entry of a plea of guilty or commencement of trial if the motion is based upon a ground prescribed in paragraph (b) or (i) of subdivision one, or at any time before sentence if the motion is based upon any other ground." Neither (b) nor (i) concern a speedy trial motion.
Nor does the argument of the majority that posttrial consideration of a speedy trial motion squanders the resources of the court and involves all of the trial participants in a fool's errand withstand analysis. A motion to dismiss on the ground that prosecution is barred by the Statute of Limitations (CPL 210.20, subd 1, par [f]) or in the interest of justice ( id., par [i]) is subject to the same criticism; yet there can be no question that such a motion is a pretrial motion within the meaning of the second sentence of CPL 255.20 (subd 3). It is even more of a fool's errand to permit, as CPL 210.20 (subd 1, par [b]), in combination with CPL 255.20 (subd 3), clearly does, the making after trial of a motion to dismiss on the ground that the evidence before the Grand Jury was not legally sufficient, when CPL 210.30 (subd 6) makes appeal on such a ground impossible if there was legally sufficient trial evidence, and when the Trial Judge, if he dismisses after trial for insufficiency of the evidence before the Grand Jury has the power to direct resubmission of the matter to another Grand Jury (CPL 210.20, subd 4), thereby allowing the defendant to have another trial. Of course, such a scenario is unlikely, but it is possible under the statute, and that possibility demonstrates the fallacy in the majority's interpretation of the statute.
Finally, the suggestion that the 30.30 motion is a matter of legislative grace, as to which, "unlike a constitutional claim for denial of a speedy trial" (majority opn, p 205), defendant must comply strictly with statutory requirements, is of no greater validity. CPL 210.20 (subd 2) makes no distinction between constitutional and statutory speedy trial motions. Either both may be made, in the Trial Judge's discretion, at any time before sentence under CPL 255.20 (subd 3), or neither may be. And as is clear from the wording of the statutes in question, from the absence of any legislative history to support the thesis of the majority and from the clear refutation of that thesis by the manner in which the changes made by chapter 763 of the Laws of 1974 were made, the Legislature did not intend what the majority now reads into CPL 210.20 (subd 2).
As an alternate reason for refusing to reach the merits, the majority states that in deferring the motion the Calendar Judge did not exercise discretion and that, in any event, her entertainment of the motion was an abuse of discretion as a matter of law because defendant had not demonstrated good cause. There being no other basis for deferral of the motion until after trial and no reason to believe that the Calendar Judge deliberately violated the statute, the necessary implication is that she acted in what she thought was the discretion vested in her by CPL 255.20 (subd 3) or CPL 210.20 (subd 2), or both. Moreover, under the second sentence of CPL 210.20 (subd 2), defendant had the absolute right to make his speedy trial motion on October 27, 1981, "prior to the commencement of trial." Thus, the only possible abuse of discretion would be in the Judge's acceptance of the written speedy trial motion after trial and ruling upon it on the merits. As to that, however, defendant's counsel had good cause for the delay — the direction of the Calendar Judge that the motion "be litigated after the trial, if necessary"! Finally, even if we accept the majority's premise that defendant's counsel was obligated to show cause on October 27, there is nothing in the record to indicate the basis for the Calendar Judge's direction to defer the motion until after trial. Whether she abused her discretion has never been raised or argued below. At the very least, therefore, we should remit for a hearing before holding that there was an abuse of discretion as a matter of law, for we have no way of knowing what basis defendant's counsel advanced for requesting deferral of the motion until after trial.
In sum, the majority's refusal to consider the merits of the speedy trial issue is without basis. Were the merits reached I would reverse, but this being a dissent, and the issue of importance to criminal procedure being the majority's truncation of the power granted the superior court Judge by the Legislature, no useful purpose would be served by articulation of my reasons on the merits.