People v Lanfranco

2015 NY Slip Op 00661 [124 AD3d 1144]

January 29, 2015

Appellate Division, Third Department

As corrected through Wednesday, March 4, 2015

[*1]

The People of the State of New York,Respondent, v Jose Lanfranco, Appellant.

David E. Woodin, Catskill, for appellant.

Joseph Stanzione, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.

Egan Jr., J. Appeal from a judgment of the County Court of Greene County (Pulver,J.), rendered April 2, 2013, convicting defendant upon his plea of guilty of the crime ofattempted promoting prison contraband in the first degree.

In February 2012, a grand jury returned a sealed indictment charging defendant withone count of promoting prison contraband in the first degree. The charges stemmed froma May 2011 incident at Coxsackie Correctional Facility in Greene County (wheredefendant then was incarcerated), at which time a search of defendant uncovered a pieceof glass wrapped in a cardboard and masking tape sheath inside of his underwear.Defendant was arraigned on this charge in March 2012. Various motions followed,including an omnibus motion seeking the production of the underwear that defendantwas wearing at the time of the incident, as well as defendant's pro se motion seeking,among other things, to dismiss the indictment upon statutory and constitutional speedytrial grounds. County Court denied both motions and, in February 2014, defendantentered an Alford plea to the reduced charge of attempted promoting prisoncontraband in the first degree and waived his right to appeal his conviction and sentence.Following an unsuccessful pro se motion to withdraw his plea, defendant was sentencedas a second felony offender to the agreed-upon prison term of 11/2 to 3years, said sentence to be served consecutively to the sentence he already was serving.This appeal ensued.

Defendant's primary argument upon appeal is that he was denied his constitutionalright [*2]to a speedy trial by virtue of prearraignmentdelay.^[FN*]Although defendant's speedy trial claim survives both his guilty plea and his waiver ofthe right to appeal (see People vTuper, 118 AD3d 1144, 1146 [2014]), we find it to be lacking in merit. Inreviewing an alleged constitutional speedy trial violation, we must consider five factors:"(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlyingcharges; (4) any extended period of pretrial incarceration; and (5) any impairment ofdefendant's defense" (People vRomeo, 12 NY3d 51, 55 [2009], cert denied 558 US 817 [2009]; seePeople v Taranovich, 37 NY2d 442, 445 [1975]; People v Irvis, 90 AD3d 1302, 1303 [2011], lvdenied 19 NY3d 962 [2012]).

Here, although the People indeed proffered no reason for the 10-month delay, delaysof similar lengths have been found not to violate due process (see People v Weatherspoon, 86AD3d 792, 792-793 [2011], lv denied 17 NY3d 905 [2011] [nine-monthdelay]; People v Striplin, 48AD3d 878, 879 [2008], lv denied 10 NY3d 871 [2008][91/2-month delay]; People v Hernandez, 42 AD3d 657, 662 [2007] [14-monthdelay]; People v Irvis, 301 AD2d 782, 783-784 [2003], lv denied 99NY2d 655 [2003] [10-month delay]), the charge at issue implicated "the safety andsecurity of the detention facility and its employees" (People v Andrade, 301AD2d 797, 798 [2003]) and, hence, was serious in nature (see People v Moustakos, 94AD3d 1538, 1539 [2012], lv denied 19 NY3d 965 [2012]; People v Lake, 2 AD3d892, 893 [2003]; People v Hernandez, 306 AD2d 751, 752 [2003]),defendant's freedom was not impaired because he already was incarcerated for anothercrime (see People v Weatherspoon, 86 AD3d at 793; People v Perez, 85 AD3d1538, 1539 [2011]; People v Hernandez, 42 AD3d at 662; People vCoggins, 308 AD2d 635, 636 [2003]) and defendant failed to demonstrate anyimpairment of his defense (seePeople v King, 62 AD3d 1162, 1163 [2009]; People v Hernandez, 306AD2d at 752). Accordingly, we discern no violation of defendant's constitutional right toa speedy trial.

As for the claimed Brady violation, assuming—withoutdeciding—that the underwear in question would constitute exculpatory evidence,the record makes clear that the People were never in possession of this item of clothing;rather, the item was in the possession of the Department of Corrections and CommunitySupervision—"an administrative agency that was not performing law enforcementfunctions" here (People vSmith, 89 AD3d 1148, 1150 [2011], lv denied 19 NY3d 968 [2012];cf. People v Kelly, 88 NY2d 248, 253 [1996]; see People v Bowers, 4 AD3d558, 559-560 [2004], lv denied 2 NY3d 796 [2004]; People v Ross,282 AD2d 929, 931 [2001], lv denied 96 NY2d 907 [2001]). Inasmuch as theagency's asserted failure to secure and preserve the underwear that defendant waswearing at the time of the incident cannot be imputed to the People (cf. People vKelly, 88 NY2d at 253; seePeople v Figueroa, 53 AD3d 779, 781 [2008], lv denied 11 NY3d 832[2008]; People v Ross, 282 AD2d at 931), no Brady violation occurred.Defendant's remaining arguments, to the extent not specifically addressed, have beenexamined and found to be lacking in merit.

Lahtinen, J.P., McCarthy and Devine, JJ., concur. Ordered that the judgment isaffirmed.

Footnote *:The sealed indictmentwas filed in February 2012 (approximately 81/2 months after theunderlying incident) and defendant was arraigned approximately 45 days later, resultingin a prearraignment delay of roughly 10 months.