People v. Fratt, 10 N.Y.3d 491 (2008)
When determining if the prosecution has met speedy trial requirements, delays resulting from a defendant’s announced intention to file pre-trial motions are excludable, even if those motions are never actually filed; also, the criminal sale of a firearm statutes do not allow for aggregation of sales to meet the statutory thresholds.
Summary
Following an undercover investigation, Fratt was convicted of multiple crimes related to illegal gun sales. He moved to set aside the verdict on two counts of criminal sale of a firearm, arguing insufficient evidence that he sold the requisite number of firearms. The trial court granted the motion. Fratt also argued a speedy trial violation. The Appellate Division affirmed the remaining convictions and the trial court’s order. The Court of Appeals affirmed, holding that the delay resulting from the announced pre-trial motions was excludable for speedy trial purposes, and the firearm statutes do not allow for aggregation of sales.
Facts
An undercover investigation targeted an illegal gun selling ring. Fratt was charged with, and convicted of, various crimes, including criminal sale of a firearm in the first and second degrees. The trial court set aside the verdict for the two higher-degree felony counts because the People failed to prove that Fratt sold the requisite number of firearms (“twenty or more” for first-degree criminal sale and “ten or more” for second-degree). The undercover officer bought 15 guns from Fratt in four separate transactions, but never more than five in a single transaction. The officer bought 31 guns from Fratt’s co-conspirators in 12 other transactions.
Procedural History
The trial court granted Fratt’s motion to set aside the verdict for the first- and second-degree criminal sale of a firearm counts. The Appellate Division affirmed the remaining convictions and the trial court’s order setting aside the verdict. A judge of the Court of Appeals granted leave to appeal to both Fratt and the People.
Issue(s)
1. Whether the trial court erred in excluding a 47-day period from the time chargeable to the People for speedy trial purposes, when defense counsel announced her intention to file pre-trial motions but ultimately did not do so.
2. Whether the trial court erred by issuing a missing witness charge for the failure to call Fratt’s half-brother to testify.
3. Whether the criminal sale of a firearm statutes allow for “aggregation” of various sales to meet the statutory thresholds.
Holding
1. No, because the delay resulted from “other proceedings concerning the defendant, including… pre-trial motions” even though the motions were never actually filed.
2. No, because Fratt failed to preserve his claim that the missing witness charge was error by not raising an argument regarding “control” in the trial court.
3. No, because nothing in the plain language of the statute supports the People’s aggregation theory.
Court’s Reasoning
Regarding the speedy trial issue, the Court distinguished People v. Collins, where no pretrial motion was even in prospect, stating that in this case, “defense counsel here clearly announced an intention to file motions, specifically including a CPL 190.50 motion. At the hearing, the trial court set a motion schedule and promised a decision before the next hearing slated for both cases.” The court reasoned that “the pretrial motions in this case were far from hypothetical. Accordingly, it is of no consequence that defendant never actually filed the contemplated motion for which the 47-day adjournment was granted.”
Regarding the missing witness charge, the court found that the defendant failed to preserve the argument, explaining, “Having never raised an argument regarding ‘control’ in the trial court, defendant failed to preserve his claim that the missing witness charge was error.”
Regarding the aggregation issue, the Court stated, “Stemming the flow of illegal weapons into this state is a critical law-enforcement goal the achievement of which helps prevent other crimes. We agree with the courts below, however, that nothing in the plain language of Penal Law §§ 265.12 and 265.13 supports the People’s aggregation theory.” The Court emphasized the importance of adhering to the plain language of the statute. Even though the overall goal of preventing illegal gun trafficking is important, the Court refused to expand the statute beyond its clear terms.