| People v Eggsware |
| 2011 NY Slip Op 09040 [90 AD3d 1231] |
| December 15, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Brad J.Eggsware, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Young I. Choi, New York ProsecutorsTraining Institute, Inc., Albany, of counsel), for respondent.
Spain, J. Appeal from a judgment of the County Court of Franklin County (Main Jr., J.),rendered April 10, 2006, convicting defendant upon his plea of guilty of the crime of attemptedburglary in the third degree (two counts).
Defendant, while serving five years of probation on a prior burglary, was arrested andcharged with various crimes related to his attempt on October 24, 2004 to burglarize a closedconvenience store and his burglary of another convenience store in the Village and Town ofTupper Lake, respectively, in Franklin County. On December 6, 2004, defendant entered a guiltyplea to attempted third degree burglary (one count) and signed a written waiver of indictment andappeal, agreeing to toll his speedy trial rights. However, over five months later on April 19, 2005,defendant was permitted to withdraw his guilty plea and was thereafter charged in an eight-countindictment with crimes stemming from the burglaries. Defendant was arraigned on June 7, 2005,at which the People declared their readiness for trial and served defendant with pretrial notices.After numerous changes of counsel and pretrial motion practice, including defendant's lengthyomnibus motion (filed in June 2005 and decided in December 2005), defense counsel moved inJanuary 2006 to dismiss the indictment on constitutional speedy trial grounds and for other relief.Due to a conflict, new counsel was assigned and the omnibus motion was renewed.
County Court (Richards, J.) denied the motion to dismiss in a written decision. On [*2]February 27, 2006, the rescheduled trial date and pursuant to a pleaagreement, defendant entered a guilty plea to two counts of attempted burglary in the third degreeand waived his right to appeal except with regard to constitutional speedy trial and sentencingclaims. Defendant was later sentenced by County Court (Main, Jr., J.), as an admitted secondfelony offender, to two prison terms of 2 to 4 years; the sentences were ordered to be servedconsecutively, rather than concurrently as initially promised as part of the plea agreement,because the court determined—after an evidentiary hearing—that defendant hadviolated the court-imposed conditions of his post-plea release under supervision. Defendant nowappeals, contending that he was denied his constitutional right to a speedy trial and the sentenceenhancement was harsh and excessive.
Applying and balancing the relevant Taranovich factors (People vTaranovich, 37 NY2d 442, 445 [1975]), none of which is determinative, we find no basis forfinding that defendant was deprived of either his due process right to a prompt prosecution or hisconstitutional right to a speedy trial (seePeople v Decker, 13 NY3d 12, 14-16 [2009]; People v Romeo, 12 NY3d 51, 55-56 [2009], cert denied558 US —, 130 S Ct 63 [2009]; People v Vernace, 96 NY2d 886, 887 [2001];People v Singer, 44 NY2d 241, 252 [1978]). Initially, with regard to the critical firstfactor, the extent of the delay, defendant concedes that the 5½-month period of timebetween his initial guilty plea and his withdrawal of that plea (December 6, 2004 to April 19,2005) is not attributable to the People, but contends that the balance of time until he entered thesecond plea on February 27, 2006 is attributable to the People and deprived him of a speedy trial.We disagree.
To begin, defendant was offered a plea deal within two weeks of his arrest, and the five-weekinterval between his arrest and his initial plea was brief. As noted, the ensuing 5½-monthlapse in time between that initial plea and his withdrawal thereof is attributable to defendant.Thereafter, during the approximately 10-month interval of time until defendant's second guiltyplea, the People promptly (1) obtained an indictment in April 2005, (2) declared readiness at theJune 2005 arraignment, and (3) responded within one week to defendant's lengthy June 2005omnibus motion. During that period following the April 2005 plea withdrawal, defendantrepeatedly expressed dissatisfaction with his assigned counsel, prompting an October 2005hearing on counsel's at-that-point unsuccessful effort to be relieved. County Court (Richards, J.),out of necessity, assigned new counsel in December 2005 (due to the expiration of counsel'scontract with the Public Defender's office), issued a decision on defendant's omnibus motion anddefendant then moved on January 26, 2006 to dismiss the indictment. On the initial trial date(February 7, 2006), the court was again required to assign new counsel due to current counsel'sconflict of interest related to a trial witness. Defendant's newly assigned counsel renewed themotion to dismiss and sought various additional relief, on February 15, 2006, which the courtdenied in a written decision dated February 22, 2006. On February 27, 2006, the rescheduled datefor trial, defendant accepted and entered a second guilty plea pursuant to a negotiated agreement.
Neither the delay in obtaining an indictment (less than two weeks after defendant withdrewhis initial guilty plea)[FN1]nor the 10-month interval after the indictment until defendant's [*3]second guilty plea was unduly lengthy. Indeed, we have upheldsimilar preindictment and/or postindictment combined intervals of time (see People v Pitt, 43 AD3d 1248,1249 [2007], lv denied 9 NY3d 1008 [2007] [17 months]; People v Morris, 25 AD3d 915,917 [2006], lvs denied 6 NY3d 851 [2006] [21 months]; People v Flagg, 30 AD3d 889,890-892 [2006], lv denied 7 NY3d 848 [2006] [14 months]). The reasons for the delayherein include defendant's repeated requests for new counsel, the court's need to assign substitutecounsel twice thereafter for legitimate reasons and defendant's pretrial motion practice. Indeed,the People declared their readiness for trial in May and June 2005—after the April 2005indictment was handed up—and little of the delay thereafter is attributable to the Peoplewho, on all occasions, promptly replied to defendant's motions and continued to present pleaoffers.
As to the nature of the underlying charges factor, we are not persuaded by defendant's effortsto minimize the burglary or attempted burglary of a business as a petty offense (see People vCole, 112 AD2d 472, 474 [1985]). With regard to defendant's pretrial incarceration, while hewas incarcerated upon his October 25, 2004 arrest and unable to make bail, remainingincarcerated until his February 2006 guilty plea, most of that period is attributable to a one-yearsentence upon his plea to violating probation that he had been serving for a prior offense (see People v Weatherspoon, 86 AD3d792, 793 [2011]; People vHernandez, 42 AD3d 657, 662 [2007]; People v Morris, 25 AD3d at 917).Further, no impairment to the defense was demonstrated. The sole conclusory claim ofprejudice—the disappearance of an important witness at an unspecified time—wasobviated when the People located and obtained a supporting deposition (shared with defendant)from that witness 25 days before defendant's entry of this guilty plea. Thus, defendant'sconstitutional speedy trial motion was properly denied as lacking in merit.
Defendant's remaining claim is that the imposition of an enhanced sentence to consecutive,rather than the contemplated concurrent, 2 to 4-year terms of imprisonment for violating theterms and conditions of his postplea release was unwarranted and should be reduced in theinterest of justice.[FN2]At the plea allocution, it was explained to defendant that he was to be released under probationsupervision until sentencing, during which period he would be required to abide by conditions ofrelease including refraining from criminal activity, making scheduled court appearances, meetingwith a probation officer, and remaining in either Franklin, Saratoga or St. Lawrence County.County Court (Main, Jr., J.) clearly advised defendant that it could impose consecutive sentencesif it were later determined that he violated the terms and conditions of his release, whichdefendant indicated he understood. Despite these warnings and probation officers reviewing theconditions with defendant, he failed to attend a scheduled probation meeting and traveled to aprohibited county, as the court determined after a presentencing evidentiary hearing on the issueof whether defendant had violated the conditions of his release.[*4]
The fact that these violations of the conditions ofdefendant's release occurred after County Court had issued an order revoking his release andissued a warrant for his arrest—due to allegations that defendant engaged in furthercriminal activity while on release—is immaterial; defendant continued to be bound by thepost-plea release under supervision conditions while he remained free pursuant to that release.That is, the issuance of an order revoking defendant's release and an unexecuted warrant fordefendant's arrest did not relieve defendant of the ongoing conditions and obligations attached tothat release.
Further, County Court fully considered the mitigating factors including defendant's age,substance abuse and mental health history, and troubled family life. However, given defendant'srepeated and escalating criminal activity and inability to abide by reasonable probationconditions, we find no abuse of discretion or extraordinary circumstances warranting a reductionof the sentences in the interest of justice (see CPL 470.15 [6] [b]).
Peters, J.P., McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: While the indictment washanded up about six months after defendant's crimes and arrest, as defendant concedes, most ofthat preindictment time (4½ months) is attributable to defendant's acceptance and laterrevocation of the initial guilty plea.
Footnote 2: Defendant's argument, raised forthe first time on appeal, that he was eligible to be sentenced to parole supervision per CPL410.91 is not preserved and will not be addressed.