4 No. 22
The People &c.,
Respondent, v. Matthew Waldron,
Appellant.
2006 NY Int. 11
February 14, 2006
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
David J. Wukitsch, for appellant. Jeffrey S. Carpenter, for respondent.
G.B. SMITH, J.:
The issue in this case is whether a pre-indictment
delay from July 11, 2000 to December 20, 2000 was properly
excluded as time charged against the People when defense counsel
engaged in plea negotiations during that period and sent a letter
expressly waiving defendant's speedy trial rights. We conclude
that defendant waived his statutory speedy trial rights and that
his constitutional speedy trial rights were not violated. The
order of the Appellate Division should, therefore, be affirmed. Defendant Matthew Waldron was arrested in the Village
of Herkimer on January 23, 2000 after police obtained
surveillance evidence showing he had engaged in several obscene
acts with children. On February 1, 2000, the Village of Herkimer
Court ordered a psychiatric and competency exam pursuant to
Article 730 of the Criminal Procedure Law. The report was filed
February 24, 2000. On March 20, 2000, defendant's assigned counsel was
replaced by retained counsel, George Aney, who soon thereafter
initiated negotiations with the prosecutor. At the outset, the
District Attorney, Michael Daley, told Aney that if the children
had to testify at a Grand Jury proceeding, the minimum offer
would be a 20-year determinate sentence. According to Aney, he
then began a deliberate strategy of delay, hoping that the
District Attorney's offer would improve with time, a tactic that
Aney communicated to his client. Aney later testified that "on
more than one occasion," he had conversations with District
Attorney Daley indicating that he wished to waive the statutory
time period in order to reserve the possibility of negotiating a
better sentence for his client. In a letter dated July 11, 2000,
Aney wrote to the District Attorney:
"In connection with the above
captioned matter, I have been
meeting with the defendant and his
father for the past few months
regarding a possible disposition of
this case without the necessity of
requiring the children to testify
before the Grand Jury. . . . In
light of these undertakings, I
would request, therefore, on behalf
of the defendant who joins in this
request, that we schedule a
dispositional hearing date on or
before September 15, 2000, and the
defendant does hereby waive any
speedy trial or other rights that
he may have by your concurring with
this request."
Between July and November, Daley and Aney spoke frequently and,
eventually, the District Attorney reduced the offer by eight
years. Defendant Waldron, nevertheless, sought and paid for
the legal advice of another inmate, and on November 30, 2000,
filed a pro se speedy trial motion and discharged Aney. In his
pro se motion, he contended that he had been in custody 317 days
without the commencement of a trial, in violation of CPL
30.30(1)(a).[1]
Defendant was indicted on December 14, 2000 and
arraigned on December 20, 2000, at which time the prosecutor
announced his readiness for trial. The Herkimer County Court
conducted a hearing on February 28, 2001 pursuant to the pro se
CPL 30.30 motion. At the hearing, defendant contradicted Aney's
claims that he knew of the intentional delay strategy. The court
denied defendant's speedy trial motion. On July 12, 2001, following a jury trial, defendant was
convicted of sodomy in the first degree (three counts) (Penal Law
former § 130.50 [3]), use of a child in a sexual performance
(§ 263.05), promoting an obscene sexual performance by a child
(§ 263.10) and possessing an obscene sexual performance by a
child (§ 263.11). On August 30, 2001, he was sentenced to 17
years for each count of sodomy, with sentences to run
consecutively. The sentence for promoting an obscene sexual
performance by a child was one and one-third to four years; for
use of a child in a sexual performance, he received three to nine
years; and for possession of an obscene performance of a child he
received one and one-third to four years, which were to run
concurrently with each other, but consecutive to the sentences
imposed on the sodomy convictions.The Appellate Division modified the sentence but
affirmed the conviction. The court reasoned that the sentence
was unduly harsh and modified the judgment by ordering the
determinate terms of 17 years imposed on the second and third
counts of the indictment to run consecutively, but all of the
other terms to run concurrently with one another (13 AD3d 1074
[2004]). The Appellate Division declined, however, to dismiss
the indictment for a violation of speedy trial rights. The court
reasoned that defendant was not denied his statutory or
constitutional rights to a speedy trial because between July 11
and November 30, 2000, Aney explicitly requested that the
prosecution postpone the presentation of defendant's case to the
grand jury and expressly waived defendant's speedy trial rights,
"all for the purpose of pursuing a favorable plea bargain for
defendant" ( id. at 1075). The court reasoned that this 142-day
period, along with the 24 days needed for the psychiatric
examination, rendered timely the People's declaration of
readiness. Additionally, the court held Aney had the authority
to bind defendant to the waiver, and the record established that
defendant did consent to the delay. Two Justices dissented,
reasoning that it was the People's burden to show defendant
waived his rights and these periods were excludable under
CPL 30.30(4). Furthermore, the dissenting Justices stated there
was no contemporaneous record made and "and absent such a record,
the delay is chargeable to the People and the purported waiver of
defendant's speedy trial rights is ineffective" ( id. at 1077).
A Justice of the Appellate Division granted defendant permission
to appeal. We now affirm. On this record, where defendant's counsel explicitly
waived speedy trial rights in order to complete ongoing plea
negotiations, such time is excludable. CPL 30.30(1)(a) states
that the People must be ready for trial within six months of the
commencement of a criminal action, exclusive of the days
chargeable to the defense. It is undisputed by both parties that
the 24 days between February 1 and February 24, 2000 are
excludable pursuant to CPL 30.30(4)(a).[3]
The record shows that
the delay worked in defendant's favor, as it resulted in a
reduced sentence offer. It is also within the record that
defendant knew of and consented to his lawyer's strategy.
Defendant claims that, at most, the People established the
excludable period requested in the letter ended September 15, the
date Aney requested a dispositional hearing. We disagree. The
July letter could have been clearer, and prosecutors would be
well advised to obtain unambiguous written waivers in situations
like these, but the letter, read in light of the negotiations
that preceded and followed it, as described in Aney's testimony,
was a waiver of the delay between July 11 and November 30 because
that was the time used by the defendant to negotiate with the
District Attorney. Although he did request a hearing for
September 15, 2000, the record indicates that Aney and Daley
remained in negotiations through November. Therefore, we hold
that there was sufficient excludable time not chargeable to the
People - the 24 days in February 2000 and the period between July
11 and November 30, 2000, the date defendant explicitly rejected
Aney's strategy of delay.
Defendant maintains that the People should have shown a
contemporaneous record of consent to the delay ( citing CPL
30.30[4][b]).[4]
But CPL 30.30(4)(b) speaks only to the question
of when continuances granted by the court may be excluded from
section 30.30's time limitations. It does not prevent a
defendant from making, through a letter from his counsel, a valid
waiver of his statutory speedy trial right, and there is no
requirement that such a letter be filed contemporaneously at the
courthouse. Finally, we hold there was no constitutional violation
of defendant's right to a speedy trial. In People v Taranovich,
, 37 NY2d 442 (1975), this Court stated the following factors
should be examined when a defendant claims there has been a
denial of his right to a speedy trial: (1) the extent of the
delay; (2) the reason for the delay; (3) the nature of the
underlying charge; (4) whether or not there has been an extended
period of pretrial incarceration; and (5) whether or not there is
any indication that the defense has been impaired by reason of
the delay.
Under the first factor, the extent or duration of the
delay, we have a delay of almost a year. Although "the greater
the delay the more probable it is that the accused will be
harmed," here it appears the delay helped defendant. Analysis of
the second factor, the reason for the delay, shows defendant and
his former lawyer were primarily responsible and also falls in
the People's favor. The third factor, the nature of the
underlying charge, also falls in the People's favor as the Grand
Jury ultimately indicted defendant on seven felony counts
involving the sexual abuse of minors. This matter required
delicate handling by the District Attorney, who sought to
minimize further harm to the victims by making them testify. The fourth factor, whether or not there has been an
extended period of pretrial incarceration, falls in the
defendant's favor, although we note that he chose to extend this
pretrial incarceration by agreeing to a waiver. Analysis of the
fifth factor, whether or not there is any indication that the
defense has been impaired by reason of the delay, again shows
that defendant was not impaired because he received a better
offer from the prosecutor as a result of waiting. Balancing
these factors, we hold that defendant was not deprived of his
constitutional right to a speedy trial. Accordingly, the order of the Appellate Division should
be affirmed.
1. Except as otherwise provided in
subdivision three, a motion made pursuant to
paragraph (e) of subdivision one of section
170.30 or paragraph (g) of subdivision one of
section 210.20 must be granted where the
people are not ready for trial within:
(a) six months of the commencement of a
criminal action wherein a defendant is
accused of one or more offenses, at least one
of which is a felony;
The mandatory state surcharge of $210 was also imposed, as
well as defendant's entry into the sex offender registry and
permanent orders of protection.
"In computing the time within which the
people must be ready for trial pursuant to
subdivisions one and two, the following
periods must be excluded:
(a) a reasonable period of delay
resulting from other proceedings
concerning the defendant, including
but not limited to: proceedings for
the determination of competency and
the period during which defendant
is incompetent to stand trial;
demand to produce; request for a
bill of particulars; pre-trial
motions; appeals; trial of other
charges; and the period during
which such matters are under
consideration by the court..."
"In computing the time within which the
people must be ready for trial pursuant to
subdivisions one and two, the following
periods must be excluded:
(b) the period of delay resulting
from a continuance granted by the
court at the request of, or with
the consent of, the defendant or
his counsel. The court must grant
such a continuance only if it is
satisfied that postponement is in
the interest of justice, taking
into account the public interest in
the prompt dispositions of criminal
charges. A defendant without
counsel must not be deemed to have
consented to a continuance unless
he has been advised by the court of
his rights under these rules and
the effect of his consent. . ."