People v. Mendez ( 1978 )

OPINION OF THE COURT

Silverman, J.

Defendant appeals from a judgment of the Supreme Court convicting him, after jury trial, of assault in the second degree (Penal Law, § 120.05) and sentencing him to an indeterminate term of imprisonment with a maximum of seven years.

Two points are raised by appellant on appeal: An alleged improper reduction by the court of the indictment from murder to assault in the second degree, and a deprivation of his right to a speedy trial. We think that there was no error in the reduction of the charge in the indictment and that therefore, except for the issue of speedy trial discussed below, defendant was properly convicted of assault in the second degree.

I. Defendant was arrested on December 21, 1971 in connection with the brutal beating of the victim that day. On March 1, 1972, defendant was indicted for assault in the second degree and attempted murder. On October 29, 1972 the victim died. Thereupon, on December 1, 1972 defendant was indicted for murder. Six months later the first indictment which had charged assault in the second degree and attempted murder was dismissed.

On September 19, 1974 defendant made an omnibus motion, which apparently included a motion to dismiss the second indictment pursuant to CPL 210.20 (subd 1, par [b]) on the ground that the evidence before the Grand Jury was not legally sufficient to establish a charge of murder because of failure to show a causal relation between defendant’s alleged assault and the death of the victim 10 months later. No formal action appears to have been taken with respect to that motion until September 30, 1975, the day before the suppression hearing which immediately preceded the trial. On that date, the District Attorney conceded that the evidence was insufficient to sustain the charge of murder for the reason that, although the death certificate received in evidence before the Grand Jury did list the cause of death as "traumatic subdural hemorrhage”, which was apparently suffered in the course of the assault, the medical examiner, who had issued the certificate, had told the trial Assistant District. Attorney, during conversations and preparation for the trial, that the medical examiner could not establish beyond a reasonable doubt that the death was a direct result of the assault. (Apparently the trial Assistant District Attorney had informed the court of this fact.) However, the District Attorney contended that the indictment should not be dismissed because it was sufficient to sustain a charge of assault in the second degree. And accordingly, the District Attorney asked to reduce the charge to assault in the second degree, as a lesser included offense. The court, over objection by defense counsel, stated that it granted the motion "to reduce, so to speak” and instructed that no reference should be made to the murder charge either in court or on the clerk’s calendar. After a jury trial, defendant was convicted of the highest crime submitted, assault in the second degree.

We do not think the court’s action in "reducing” the charge to assault in the second degree was improper or that it requires reversal of the conviction. Basic to our position is the proposition that assault in the second degree is a lesser included offense of murder, particularly on this indictment. The indictment charges the defendants (there was a codefendant) with "the crime of murder, committed as follows: The defendants, in the County of New York, on or about December 21, 1971 with intent to cause the death of John Costello caused the death of John Costello by striking him with their fists and feet and thereby inflicted divers wounds upon him and thereafter and on or about October 29, 1972 said John Costello died of said wounds.” This charge of murder necessarily includes a charge of assault in the second degree as a lesser included offense as defined in CPL 1.20 (subd 37). "[I]t is impossible to commit” the crime of murder as described in this indictment "without concomitantly committing, by the same conduct” (CPL 1.20, subd 37), the crime of assault in the second degree, i.e., intentionally causing serious physical injury to the victim (Penal Law, § 120.05, subd 1). The charge that on December 21, 1971 with intent to cause the victim’s death, the defendant intentionally caused the victim’s death by striking the victim and inflicting on him wounds from which the victim died 10 months later necessarily includes a charge that on December 21, 1971 defendant intentionally caused serious physical injury to the victim, i.e., "physical injury which creates a substantial risk of death, or which causes death” (Penal Law, § 10.00, subd 10).

Assault in the second degree being a lesser included offense with respect to the charge of murder in the indictment, what was the proper course for the trial court to take on the District Attorney’s concession that the evidence would be insufficient to prove or warrant a charge of murder but was and would be sufficient to sustain a charge of assault in the second degree? Clearly the court could not grant defendant’s motion to dismiss the indictment, as that could only be done if the evidence before the Grand Jury was insufficient to establish the offense charged "or any lesser included offense” (CPL 210.20, subd 1, par [b]).

If the court merely denied the motion to dismiss, then the trial would have begun on the indictment charging murder, but the court would still have been required to submit only "the greatest lesser included offense which is supported by legally sufficient trial evidence” (CPL 300.30, subd 1), i.e., assault in the second degree; and the court would have been required to inform the parties of that fact at some time prior to summation (CPL 300.10, subd 3). This procedure is presumably what we would have to direct if we were to hold that what the Trial Judge did was error (cf. People v Motello, 157 App Div 510, 512).

But this procedure does not differ materially from what the trial court did in this case, except that the trial court avoided the gross injustice of permitting the trial to proceed on a charge of murder, with the trial jury thus being informed that the Grand Jury had charged that the defendant caused the death of the victim, and without telling the jury until some later point that there was no legally sufficient evidence that the defendant had caused the death of the victim.

Instead of this unjust procedure, the court followed the eminently sensible and just procedure of anticipating by a few days the announcement that it was required to make, that it would only submit the charge of assault in the second degree, and told the lawyers before the jury was selected that the highest offense that the court would submit would be assault in the second degree and instructed the parties that the charge of murder would not be referred to.

We note that what the court did did not really amount to an "amendment” of the indictment. The court did not change one word of the factual allegations contained in the indictment. It merely changed the name of the crime charged from murder to assault in the second degree. It was long ago said: "An indictment must contain 'a plain and concise statement of the act constituting the crime without unnecessary repetition’ (Code Crim. Proc. § 275) [cf. CPL 200.50, subd 7], and it is of no moment if the name of the crime be incorrectly stated in the accusatory clause of the indictment if the specific allegations of fact are sufficient, for the latter in such case control the character of the crimes presented by the indictment * * * The purpose of requiring the acts to be set forth in the indictment is that the accused may know what he is called upon to meet, and if no more is proved against him than is so charged, even if all be not proven, and the acts which are proved constitute a lesser crime than that for which he was indicted, no injustice is done if he be convicted of the lesser charge.” (People v Miller, 143 App Div 251, 256, affd on opn of App Div 202 NY 618.)

People v Hooter (282 App Div 398) and People v Kuehn (5 AD2d 516) both reached results different from what we have suggested. At the time those cases were decided, the governing procedural statute was the Code of Criminal Procedure which differed somewhat from the present CPL, in particular with respect to the form of indictments and the absence of any provision like CPL 210.20 (subd 1, par [b]) making explicit that indictments are not to be dismissed if the evidence before the Grand Jury is sufficient to sustain a lesser included offense. To the extent that the reasoning of those cases is inconsistent with what we have said, we must respectfully disagree with them.

II. However, there is a very serious question as to the denial of defendant’s right to a speedy trial. There was a delay in excess of three and one-half years between the commencement of the criminal action and the trial, and defendant timely sought speedy trial relief pro se. While the briefs of both parties indicate that much of the delay may be attributable to defendant’s attorney, the court should have before it a record as to the causes of and responsibility for the delays in a case where there has been delay as extensive as this. Accordingly, we remand for a hearing on this issue and hold the appeal in abeyance.

The appeal from the judgment of the Supreme Court, New York County (McQuillan, J.), entered December 4, 1975, convicting defendant of assault in the second degree and sentencing him thereon should be held in abeyance pending a hearing which should be directed to be held in the Supreme Court to determine whether there has been a denial of defendant’s right to a speedy trial.