| People v Crowell |
| 2015 NY Slip Op 06378 [130 AD3d 1362] |
| July 30, 2015 |
| Appellate Division, Third Department |
[*1](July 30, 2015)
| The People of the State of New York, Respondent, vRobert Crowell, Appellant. |
Mitch Kessler, Cohoes, for appellant.
James R. Farrell, District Attorney, Monticello, for respondent.
Peters, P.J. Appeal from a judgment of the County Court of Sullivan County(LaBuda, J.), rendered November 13, 2012, upon a verdict convicting defendant of thecrimes of course of sexual conduct against a child in the first degree (two counts) andcourse of sexual conduct against a child in the second degree (two counts).
On April 17, 2008, the victims (twins born in 1997) disclosed to a school counselorand, subsequently, a State Police investigator that defendant had subjected them torepeated acts of sexual abuse over the course of several years. That same day, defendantwas arrested and charged in a felony complaint with rape in the first degree for conductthat allegedly occurred on March 30, 2008. After police discovered an image and severalvideos of child pornography on defendant's home computer, he was also charged byindictment with 17 counts of possession of a sexual performance by a child. Pursuant to aNovember 2008 negotiated plea agreement, defendant pleaded guilty to three counts ofpossession of a sexual performance by a child in full satisfaction of the indictment, therape charge was dismissed and the People promised not to pursue that charge in thefuture. Defendant was sentenced to a term of imprisonment.
In March 2012, defendant was indicted on two counts each of course of sexualconduct against a child in the first and second degrees based upon conduct that occurredbetween June 8, 2003 and June 8, 2004 and, subsequently, between June 8, 2005 andMarch 1, 2008. He thereafter moved to, among other things, dismiss the indictment ondouble jeopardy grounds, [*2]which motion CountyCourt denied.[FN1]Following a jury trial, defendant was convicted as charged and sentenced, as a secondfelony offender, to an aggregate prison term of 64 years to be followed by 20 years ofpostrelease supervision. He appeals.
The record does not support defendant's contention that his 2008 guilty plea satisfiedall potential charges arising out of his protracted sexual abuse of the victims so as towarrant dismissal of the instant indictment. Rather, the People specified during the pleacolloquy that, as part of the agreement, the felony complaint charging defendant withrape in the first degree would be dismissed and the People would be precluded frompursuing that charge in the future. County Court then confirmed that defendant's guiltyplea was being taken in satisfaction of all charges with respect to his computer and therape in the first degree charge. No explicit promises were made with regard to any otheruncharged sex crimes being encompassed by defendant's guilty plea, and any unstatedintention or off-the-record promise to that effect is not entitled to judicial recognitioninasmuch as it would be inconsistent with the terms and conditions of the plea agreementplaced on the record (see Matter of Benjamin S., 55 NY2d 116, 120-121 [1982];People v Walker, 26 AD3d797, 798 [2006], lv denied 6 NY3d 854 [2006]; People v VanNostrand, 217 AD2d 800, 801 [1995], lv denied 87 NY2d 851 [1995]; compare People v Oginski, 41AD3d 1097, 1098 [2007]).[FN2]
Nor is the instant prosecution barred by the statutory double jeopardy provisions ofCPL 40.20,[FN3]which, with certain enumerated exceptions, prohibits the separate prosecution of offenses"based upon the same act or criminal transaction" (CPL 40.20 [2]; see CPL 40.10[2]). Here, the rape charged in the 2008 felony complaint arose out of a March 30, 2008incident, whereas the four counts of the subject indictment charge a course of sexualconduct occurring from June 8, 2003 to June 8, 2004 (counts 1 and 2) and from June 8,2005 to March 1, 2008 (counts 3 and 4). The conduct alleged in these two accusatoryinstruments occurred at different times and involve separate and distinct criminal actsthat are not part of the same criminal transaction (see Matter of Martinucci v Becker, 50 AD3d 1293,1293-1294 [2008], lv denied 10 NY3d 709 [2008]; People v Harris, 267AD2d 1008, 1009-1010 [1999]; People v Van Nostrand, 217 AD2d at 801;People v Moore, 170 AD2d 847, 849 [1991], lv denied 77 NY2d 998[1991]; cf. People v Fehr,45 AD3d 920, 922 [2007], lv denied 10 NY3d 764 [2008]). Likewise,defendant's 2008 possession of numerous pornographic videos of other childrenengaging in sexual performances is not part of the same criminal transaction as his actsof subjecting the victims to repeated acts of sexual abuse over the course of a more thanfour-year period commencing in June 2003 (see People v [*3]DeProspero, 91AD3d 39, 44-45 [2011], affd 20 NY3d 527 [2013]; People v Batista,282 AD2d 825, 826 [2001], lv denied 96 NY2d 825 [2001]).
We next address defendant's claim that counsel was ineffective for failing to move todismiss the indictment on statutory speedy trial grounds, mindful that "a failure ofcounsel to assert a meritorious statutory speedy trial claim is, by itself, a sufficientlyegregious error to render a defendant's representation ineffective" (People v St. Louis, 41 AD3d897, 898 [2007]; see Peoplev Lydecker, 116 AD3d 1160, 1161 [2014], lv denied 24 NY3d 962[2014]; People v Garcia, 33AD3d 1050, 1051-1052 [2006], lv denied 9 NY3d 844 [2007]). Where adefendant is charged with a felony, the People must be ready for trial within six monthsof the commencement of the criminal action (see CPL 30.30 [1] [a]; People vCortes, 80 NY2d 201, 208 [1992]). "A criminal action is commenced when the firstaccusatory instrument is filed, and 'includes the filing of all further accusatoryinstruments directly derived from the initial one' " (People v Nelson, 68 AD3d1252, 1253 [2009], quoting CPL 1.20 [16] [b] [emphasis added]; see People v Lowman, 103AD3d 976, 976-977 [2013]).
Defendant asserts that the indictment here directly derived from the April 2008felony complaint charging him with rape in the first degree, such that it should relateback to the filing of the felony complaint for speedy trial purposes. As we have alreadyconcluded, however, the felony complaint and subsequently filed indictment chargeconduct plainly arising from separate and distinct criminal transactions. Thus, the speedytrial time clock commenced to run upon the filing of the subject indictment, not the 2008felony complaint (see People v Lowman, 103 AD3d at 977; People vNelson, 68 AD3d at 1254; People v Fehr, 45 AD3d at 922; People vLashway, 187 AD2d 747, 748 [1992], lv denied 81 NY2d 842 [1993]). Asthere is no dispute that the People announced their readiness for trial well within sixmonths of the filing of the indictment, defendant was not denied his statutory right to aspeedy trial and his counsel was not ineffective for failing to make a motion premisedupon that ground (see People v Lydecker, 116 AD3d at 1162).
Finally, defendant failed to preserve for our review his contention that certain countsof the indictment are multiplicitous (see People v Ariosa, 100 AD3d 1264, 1267 [2012], lvdenied 21 NY3d 1013 [2013]; People v Thompson, 34 AD3d 931, 932 [2006], lvdenied 7 NY3d 929 [2006]).
McCarthy, Egan Jr. and Rose, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Despite County Court'soral representation that a written decision would be forthcoming addressing that portionof the motion, the record is bereft of any such document, and, according torepresentations made by counsel at oral argument in response to a query from the Court,no such decision ever issued.
Footnote 2:Further, any subjectivebelief by defendant that the plea would end all criminal exposure stemming from hissexual abuse of the victims is irrelevant (see People v Latham, 83 NY2d 233, 239[1994]; People v Van Nostrand, 217 AD2d at 801).
Footnote 3:To the extent thatdefendant's claim is based upon CPL 40.40, it has not been preserved for our review (see People v Tabor, 87 AD3d829, 830 [2011]; People v Prescott, 104 AD2d 610, 611 [1984], affd66 NY2d 216 [1985], cert denied 475 US 1150 [1986]).