Opinion
May 22, 1967
Appeal from a judgment of the County Court of St. Lawrence County rendered upon a verdict convicting defendant of the crime of assault in the second degree. The defendant, while operating a shooting gallery at the Gouverneur Fair on August 15, 1964, shot and injured one Anthony Patton following an argument between them. He was arrested at the site of the shooting by a Deputy Sheriff and, thereafter, arraigned before a Justice of the Peace upon a written information charging him with the crime of assault first degree. Without a hearing, the Magistrate ordered the defendant held for the Grand Jury, which indicted him on September 23, 1964, for the crime of assault in the first degree. The defendant appeared before the County Court on October 5, 1964, without counsel, at which time the court assigned counsel to represent him. On October 15, 1964, the defendant appeared before the County Court with counsel, and pleaded not guilty to the indictment. The defendant next appeared before the County Court on January 8, 1965, at which time the case was scheduled for trial beginning February 10, 1965. The trial of the defendant was begun on February 10, 1965, and resulted in the verdict by the jury of guilty of assault in the second degree. On February 19, 1965, the defendant was sentenced to a term of from four to five years, which sentence was corrected on March 11, 1965 to a term of from two and one-half to five years. On this appeal, the defendant's first contention is that the failure of the Magistrate to advise him of his right to counsel at his arraignment on August 15, 1964 is ground for reversal of the judgment of conviction. The subsequent indictment by the Grand Jury may not be affected by any defects in the proceedings before the Magistrate. The Grand Jury had the power to investigate and indict regardless of what occurred before the Magistrate. ( People ex rel. Hirschberg v. Close, 1 N.Y.2d 258; People v. Tornetto, 16 N.Y.2d 902.) The defendant's second contention is that he was deprived of his constitutional right to a speedy trial. At the hearing held on January 8, 1965, defendant objected to a further adjournment of the trial and moved to dismiss, which was denied. Section 668 of the Code of Criminal Procedure provides: "If a defendant, indicted for a crime whose trial has not been postponed upon his application, be not brought to trial at the next term of the court in which the indictment is triable, after it is found the court may, on application of the defendant, order the indictment to be dismissed, unless good cause to the contrary be shown." The adjournment of trial to February 10, 1965 was granted in the court's discretion by reason of the unavailability of the prosecution's chief witness, and the fact that the District Attorney was, at that time, engaged with matters before the Grand Jury. The respondent argues that, under the circumstances, good cause for delay existed. The trial court's determination that good cause was shown was not an abuse of its discretion by granting the adjournments, and the defendant was not deprived of his right to a speedy trial. ( People v. Alfonso, 6 N.Y.2d 225; People v. Chambers, 24 A.D.2d 656, affd. 18 N.Y.2d 819.) The defendant further contends that the verdict was not supported by the evidence. There were conflicting versions of the happening of the incident, particularly as to whether or not the defendant shot in self-defense, as he so testified. Three of the witnesses for the People, one of whom was a disinterested witness, testified that the victim was walking or running away from the defendant at the time he was shot. The jury chose to believe the witnesses for the prosecution and absent any influence of passion, prejudice, mistake or corruption, its verdict should not be interfered with. ( People v. Horton, 308 N.Y. 1.) The sentence, as corrected upon the court's own motion (see Code Crim. Pro., §§ 517, 485), was not excessive. Judgment affirmed. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.