| People v Romeo |
| 2008 NY Slip Op 00723 [47 AD3d 954] |
| January 29, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Romeo, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael Blakey of counsel; StephenMiller on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Kahn, J.),rendered February 16, 2006, convicting him of manslaughter in the first degree, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is reversed, on the law, the indictment is dismissed, and the matteris remitted to the County Court, Suffolk County, for the purpose of entering an order in itsdiscretion pursuant to CPL 160.50.
In November 1985 the defendant killed John Starkey in Suffolk County (hereinafter theStarkey homicide). During the course of the People's investigation of this homicide, the CountyCourt issued an order that the defendant provide blood and hair samples. The defendant'sattorney arranged that the defendant would surrender on March 5, 1987. Instead of surrendering,the defendant fled to Canada, where, on March 8, 1987, he killed a New Brunswick constable.The defendant recrossed the border into the United States and was arrested in Boston for thatcrime. On March 9, 1987, he appeared before a federal magistrate, who ordered that he be heldwithout bail pending extradition to Canada. Suffolk County law enforcement officials, who weremade aware [*2]of the defendant's presence in the United States,obtained blood and hair samples from him while he was incarcerated in Boston. Within a week,testing of those samples linked the defendant to the Starkey homicide. In that same month, March1987, a grand jury in Suffolk County returned an indictment charging the defendant with twocounts of murder in the second degree in connection with the Starkey homicide, and an arrestwarrant and a detainer were issued.
In March and April 1987, while the defendant remained in federal custody, hearings wereheld on the Canadian extradition request, and the People agreed to permit the Canadian case tobe tried first. The defendant, through counsel, objected, and asserted the defendant'sconstitutional right to a speedy trial. In May 1987, the defendant, who was then in federalcustody in Springfield, Missouri, moved for an order directing the People to obtain thedefendant's presence in Suffolk County for arraignment. At the oral argument on the motion, thePeople, in opposing the motion, argued in part that they believed the Canadian trial would notaffect or delay the timing of the ultimate trial date under the Suffolk County indictment for theStarkey homicide.
By order dated June 17, 1987, more than three months after the defendant had been takeninto federal custody, the County Court denied his motion. The court noted that the People'sdecision to defer its prosecution of the Starkey homicide might implicate the defendant's speedytrial rights: "[i]n the event that this procedure results in the violation of the defendant's right to aspeedy trial he may seek the ultimate remedy of dismissal at the appropriate time and in theappropriate manner." At oral argument on the motion on June 15, 1987 the County Court hadcharacterized the People's strategy as "one that they will have to live with." The defendant wasextradited to Canada in 1987, convicted of the constable's murder, and sentenced to anindeterminate term of 25 years' to life imprisonment. The People did not seek to extradite thedefendant from Canada after his conviction and sentencing in 1987.
In July 1999, while incarcerated in Canada, the defendant moved in the County Court,Suffolk County, to dismiss the Starkey indictment on constitutional and statutory (seeCPL 30.20) speedy trial grounds. The People argued in opposition, as they do now, that under theextradition treaty between the United States and Canada (see Treaty on ExtraditionBetween the United States of America & Canada, 27 UST 983, TIAS No. 8237 [1971]), it wouldhave been futile to seek extradition because it would have required the Canadian authorities tocommute the defendant's sentence on his conviction for the murder of the constable. The motionwas denied in December 1999.
On April 30, 2003, an amendment to the extradition treaty became effective and, on June 3,2003, the People sought extradition of the defendant. In November 2005, upon the defendant'sreturn to the United States, he was finally arraigned on the Suffolk County indictment. InFebruary 2006 the defendant pleaded guilty to manslaughter in the first degree pursuant to theSuffolk County indictment and was sentenced to an indeterminate term of 7 to 21 years'imprisonment with respect to the Starkey homicide, to run concurrently with the term imposedupon his Canadian conviction. During the 2005 and 2006 proceedings in the County Court,Suffolk County, the defendant did not renew or reassert his constitutional speedy trial claim. Aspart of his allocution to the guilty plea to manslaughter in the first degree, he expressly waivedhis right to appeal his "plea and sentence as well as any prior rulings that remain in the case."
After the defendant was sentenced in Suffolk County, he was returned to Canada to continueserving the sentence imposed in connection with the constable's murder and the concurrentsentence [*3]on the Starkey homicide.
The defendant now appeals his conviction for the Starkey homicide, arguing that hisconstitutional right to a speedy trial has been violated.
The People's claim that the defendant's "failure to file a motion to dismiss the indictment in2005 or 2006 constitutes nonpreservation" of his constitutional speedy trial claim is withoutmerit. The defendant's claim is "not procedurally barred since constitutional speedy trial claimssurvive both a plea of guilty and an otherwise efficacious waiver of appellate review" (Peoplev Love, 236 AD2d 488, 489 [1997]; see People v Seaberg, 74 NY2d 1, 9 [1989])."[A] defendant who initially interposes a constitutional speedy trial claim but subsequentlyabandons it before a determination on the claim is made, cannot subsequently raise thatclaim on appeal" (People v Sutton, 80 NY2d 273, 282 [1992] [emphasis added]). Here,however, the defendant's 1999 constitutional speedy trial motion was, in fact, decided by theCounty Court in 1999. The defendant was, thus, not required to reassert this claim when hepleaded guilty in 2006 (cf. People v Love, 236 AD2d at 489). Nor could the defendant'swaiver of the right to appeal encompass the claim (see People v Sutton, 80 NY2d at281-282; People v Allen, 86 NY2d 599, 602 [1995]; People v Seaberg, 74 NY2dat 9).
On the merits, in evaluating a speedy trial claim under the United States Constitution, wemust consider the extent of the delay, the reason for it, the nature of the underlying charge,whether there has been an extended period of pretrial incarceration, and whether there is anyindication that the defense has been prejudiced by the delay (see People v Taranovich, 37NY2d 442, 445 [1975]; cf. People v Vernace, 96 NY2d 886, 887 [2001]).
The defendant's constitutional speedy trial claim must be evaluated in light of the delay as ofthe time the defendant made his speedy trial motion in 1999 (see People v Love, 236AD2d at 488-489). We agree with the defendant that he was denied his constitutional right to aspeedy trial (see US Const, 6th, 14th Amends).
Here, the delay we consider is the 12 years from 1987 to 1999. That lengthy period isextraordinary (see Doggett v United States, 505 US 647, 657 [1992]; Barker v Wingo,407 US 514, 533 [1972]). Indeed, the People do not dispute that the defendant need notdemonstrate prejudice in light of this extensive period of delay, arguing only that they wereprejudiced as well. Additionally, the reason for the delay was the People's decision to deferprosecution in favor of the Canadian prosecution, despite the defendant's presence in thiscountry. That the People may have mistakenly believed that they would be able to obtain thedefendant's presence after the Canadian trial was completed is unavailing, especially in light ofthe facts that the extradition provisions in effect before the defendant was extradited to Canadawere the same as those in effect during the entire 12-year period of delay, and the People did notrequest extradition (see United States v Pomeroy, 822 F2d 718, 721-722 [8th Cir 1987];United States v McConahy, 505 F2d 770 [7th Cir 1974]; People v McLaurin, 38NY2d 123, 126 [1975]; People v Winfrey, 20 NY2d 138, 141-142 [1967]). Two of theTaranovich factors (see People v Taranovich, 37 NY2d 442 [1975]) militate infavor of the People's position. The seriousness of the charges in connection with the Starkeyhomicide is self-evident, and the defendant was not incarcerated before trial on those charges atall. Nevertheless, under the circumstances of this case, we find that the length of the delay, theprejudice to the defendant, and the People's responsibility for the delay—despite havingbeen aware before the defendant was extradited to Canada that he was asserting his constitutionalright to a speedy trial—outweigh the other factors. The defendant was denied hisconstitutional right to a speedy trial. Crane, J.P., Rivera, Florio and Balkin, JJ., concur.