| People v Fehr |
| 2007 NY Slip Op 08143 [45 AD3d 920] |
| November 1, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Mark D. Fehr,Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Cheryl A. Mancini of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered December 1, 2005, upon a verdict convicting defendant of the crimes of course ofsexual conduct against a child in the first degree, sodomy in the first degree, rape in the seconddegree (four counts), perjury in the first degree (three counts) and endangering the welfare of achild.
Issues asserted by defendant on appeal include an alleged statutory speedy trial violation, theimproper amendment of the indictment, and the prejudicial questioning by the prosecutor ofprospective jurors. Defendant is the stepfather of the victim, who was born in 1988. In early2003, the victim discovered that she was pregnant and reported to authorities that eitherdefendant or one other individual was the father of the child as a result of sexual intercourseduring November 2002. Defendant was charged in a felony complaint in May 2003 with seconddegree rape and, in June 2003, testified before the grand jury, where he denied ever having sexualintercourse with the victim. The victim became uncooperative by the time of her appearancebefore the grand jury and she reportedly stated in a rather pugnacious fashion that [*2]defendant did not have sex with her.[FN1]The People withdrew the charge.
The victim eventually became cooperative and, while no subsequent charges were sought forthe November 2002 incident in which the victim was impregnated, the People obtained anindictment on February 13, 2004 charging defendant with, among other things, course of sexualconduct against a child in the first degree for acts from July 1999 to December 1999, course ofsexual conduct against a child in the first degree for acts from April 2000 to June 2000, rape inthe second degree occurring on July 15, 2001, rape in the second degree occurring on May 5,2003, and perjury in the first degree occurring when defendant testified before a grand jury inJune 2003. At the arraignment on that indictment in early March 2004, the People declared theywere ready.
Various motions ensued, including defendant's July 2004 motion to dismiss. County Courtdenied most of the relief sought by defendant in its November 4, 2004 decision, except itdismissed the two charges of course of sexual conduct against a child in the first degree (counts 1and 2) as multiplicitous. The People were granted leave to re-present the matter to a new grandjury and, on November 17, 2004, defendant was indicted on, among other charges, one count ofcourse of sexual conduct against a child in the first degree for conduct from May 1999 to July2001, as well as various counts of rape, perjury and endangering the welfare of a child. TheNovember 2004 indictment superseded the February 2004 indictment, which was dismissed, andthe People declared that they were ready for trial on November 18, 2004, when defendant wasarraigned on the new indictment. Defendant made new motions in December 2004 and thePeople filed a prompt response.
On May 12, 2005, four days prior to the scheduled trial date, the People moved to amend thecharge of course of sexual conduct against a child in the first degree to shorten the alleged timeframe to acts between February 1, 2001[FN2]and July 2001. Defendant opposed the motion and requested an adjournment of the trial, whichwas granted with a new trial date set for August 15, 2005. On August 11, 2005, County Courtgranted the People's motion to amend the indictment. The trial commenced as scheduled with thejury ultimately finding defendant guilty of all the charged crimes. He was sentenced as a secondfelony offender to an aggregate prison term of 28½ to 32 years and now appeals.
We turn first to defendant's argument that his statutory speedy trial rights were violated. ThePeople must be ready for trial within six months of the commencement of a criminal actioninvolving a felony (see CPL 30.30 [1] [a]; People v Green, 31 AD3d 1048, 1049 [2006], lv denied 7NY3d 902 [2006]). A criminal action is commenced when the first accusatory [*3]instrument is filed and a superseding indictment generally relatesback to the first indictment (see People v Cooper, 98 NY2d 541, 543-544 [2002];People v Sinistaj, 67 NY2d 236, 237 [1986]; People v Weaver, 34 AD3d 1047, 1049 [2006], lv denied 8NY3d 928 [2007]). Whether the People have met their statutory obligation is "determined bycomputing the time elapsed between the filing of the first accusatory instrument and the People'sdeclaration of readiness, subtracting any periods of delay that are excludable under the terms ofthe statute and then adding to the result any postreadiness periods of delay that are actuallyattributable to the People and are ineligible for an exclusion" (People v Cortes, 80 NY2d201, 208 [1992]; People v Flowers, 240 AD2d 894, 895 [1997], lv denied 90NY2d 1011 [1997]).
Defendant contends that the starting date for the criminal action which led to his convictionwas May 2003, when he was charged in a felony complaint with criminal conduct occurring inNovember 2002. We cannot agree. Defendant was never indicted for the November 2002incident. The subsequent indictments did not include that incident and were not directly derivedfrom the felony complaint. Where "the felony complaint and subsequently filed indictment allegeseparate and distinct criminal transactions, the speedy trial time clock commences to run uponthe filing of the indictment with respect to the new charges" (People v Dearstyne, 230AD2d 953, 955 [1996], lv denied 89 NY2d 921 [1996], 89 NY2d 1034 [1997]; seePeople ex rel. Greenstein v Sheriff of Schenectady County, 220 AD2d 190, 193 [1996]).
Here, the speedy trial clock for the crimes of which defendant was ultimately convictedcommenced with the February 13, 2004 indictment, giving the People 182 days in which todeclare their readiness (see People vBrown, 23 AD3d 703, 704 [2005], lv denied 6 NY3d 810 [2006]), and thesuperceding indictment in November 2004 related back to the February 2004 indictment forspeedy trial purposes. The People acknowledge that they are chargeable with 21 days from theFebruary 2004 indictment until they declared their readiness in March 2004. They are chargeablewith 14 days from November 4, 2004 (the granting of the motion dismissing two counts whichresulted in the matter being re-presented) to November 18, 2004 when they declared theirreadiness on the superceding indictment. The People also concede that their motion to amend onMay 12, 2005, shortly before trial, started another period chargeable to them. They assert thatthey should be charged for only one day since defendant requested an adjournment of the trial theday following their motion. However, even if we accept defendant's contention that the Peopleshould be charged with the entire time from the date of their motion until the commencement ofthe trial on August 15, 2005 (95 days) because the tardiness of their motion caused the delay, thetotal time chargeable to the People would still be well under 182 days. We find no other timechargeable to the People and, accordingly, they complied with the speedy trial provisions.
Defendant further argues that County Court erred in permitting the People to amend the firstcount in the indictment to shorten the time frame alleged for the charge of course of sexualconduct against a child in the first degree. The failure to include the grand jury minutes in therecord precludes meaningful review of this issue (see People v Alexander, 37 AD3d 908, 909 [2007], lvdenied 9 NY3d 839 [2007]). In any event, the amendment did not change the prosecution'stheory of the case (see CPL 200.70 [1]; People v Mayo, 19 AD3d 710, 711-712 [2005]; cf. People vGreen, 250 AD2d 143, 145 [1998], lv denied 93 NY2d 873 [1999]). [*4]Shortening the period of defendant's conduct narrowed the proof toa time frame to which the People would have been limited at trial under the circumstances of thiscase (see L 2000, ch 1, § 44, eff. Feb. 1, 2001).
Finally, defendant asserts that he was deprived of a fair trial by questions posed by theprosecutor to prospective jurors regarding their views about certain sexual matters. This issuewas not preserved for review since objections were not made to the questions at the time theywere asked (see People v Wright, 5AD3d 873, 875 [2004], lv denied 3 NY3d 651 [2004]). We discern no reason in thisrecord to address the issue as a matter of discretion in the interest of justice (see People vHenderson, 275 AD2d 948, 948 [2000], lv denied 95 NY2d 964 [2000]).
Cardona, P.J., Crew III, Mugglin and Rose, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: After the birth of the victim'schild, DNA established that defendant was, in fact, the father.
Footnote 2: Penal Law § 130.75 hadbeen amended in 2000, effective February 1, 2001, to expand the crime from acts against a childless than 11 years old to include acts against a child less than 13 years old if committed by aperson 18 or older (see L 2000, ch 1, § 44).