| People v McNeal |
| 2012 NY Slip Op 00429 [91 AD3d 1204] |
| Jnury 26, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Justin A.McNeal, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered March 13, 2009, convicting defendant upon his plea of guilty of the crimes of burglaryin the first degree and assault in the second degree.
In June 2006, defendant and several friends broke down the door to an apartment andattacked the residents, injuring three individuals. As a result, defendant was indicted on twocounts of burglary in the first degree and two counts of assault in the second degree. In June2007, defendant pleaded guilty to a reduced count of burglary in the second degree in satisfactionof the indictment, in exchange for a sentence of 3½ years in prison followed by 2½years of postrelease supervision.
In November 2007, County Court (Daley, J.), requested more information on defendant'sbackground, indicating that the court was considering a more lenient sentence or dismissal of theindictment in the interest of justice. In December 2007, the court requested the grand juryminutes, but the People refused to turn them over because no motion for their inspection hadbeen made and a plea had been entered. The court indicated its willingness to permit defendant towithdraw his plea and move for an inspection of the grand jury minutes, so as to allow the courtto better consider dismissal in the interest of justice. In January 2008, defendant moved to vacatehis plea. The court informed defendant of the possibility that he could incur a longer sentence ifconvicted after trial, which defendant acknowledged. The court [*2]granted defendant's motion and vacated the plea.
In June 2008, defendant engaged in an altercation that left the victim in a coma for eightdays. Defendant was charged by indictment with assault in the second degree and resisting arrest.In September 2008, a new judge was assigned to defendant's matters. County Court (Smith, J.)denied defendant's motion to dismiss the first indictment either in the interest of justice or onspeedy trial grounds. In December 2008, defendant pleaded guilty to burglary in the first degreein satisfaction of the first indictment and assault in the second degree in satisfaction of the secondindictment. In exchange, he was sentenced concurrently, in accordance with his plea agreement,to five years in prison followed by five years of postrelease supervision on the burglary count andtwo years in prison followed by three years of postrelease supervision on the assault count.Defendant appeals.
Defendant was not denied his constitutional right to a speedy trial. While some of the factorslaid out by the Court of Appeals weigh in favor of defendant (see People v Romeo, 12 NY3d 51, 55 [2009], cert denied558 US —, 130 S Ct 63 [2009]; People v Taranovich, 37 NY2d 442, 445 [1975]),when considered in aggregate, the factors support a finding of no violation. The 2½-yeardelay between his first indictment and the filing of his motion to dismiss was lengthy, such that itwould be considered excessive absent justification (see People v Romeo, 12 NY3d at 56;People v Morris, 25 AD3d 915,916 [2006], lv denied 6 NY3d 851 [2006]; People v Panarella, 50 AD2d 304, 307[1975]). The reasons for the delay justify that lengthy period. When defendant accepted theoriginal plea offer, the case could not proceed to trial. Defendant sought time to confer with asecond attorney, then failed to appear, requiring a continuation. After he withdrew his plea, thePeople moved to recuse the trial judge. Defendant was arrested on the assault charge, moved forappointment of new counsel, then moved to dismiss the indictment. County Court needed time todecide the motions. Much of the delay was caused by or attributable to defendant, and other delayoccurred because the original assigned judge needed to travel from a distant county; very little ofthe delay was attributable to the People. The nature of the underlying charges was serious, i.e.,more than one violent felony that resulted in extensive physical injuries to multiple victims.Defendant was only incarcerated after his arrest on the assault charge in June 2008, two yearsafter his indictment. Finally, defendant made only generic claims of prejudice to his defense,without including any specific information. Considering all of the Taranovich factors,defendant was not deprived of his constitutional right to a speedy trial (see People v Drake, 38 AD3d1009, 1010-1011 [2007], lv denied 8 NY3d 984 [2007]).
Defendant was not deprived of the benefit of his original plea bargain. County Court (Daley,J.) offered to allow defendant to withdraw his plea, presumably because the court was upset withthe People's refusal to turn over the grand jury minutes and it could obtain the minutes if the pleawas vacated. The court was seriously considering dismissal of the indictment in the interest ofjustice (see CPL 210.20 [1] [i]; 210.40), raising a legitimate reason for defendant to seekvacatur of his plea. The court did inform defendant that he could face a greater sentence afterfurther proceedings if the plea was withdrawn. Defendant, having been so informed, took agamble at possibly having the indictment dismissed. Defendant regretted that decision after anew judge was assigned—one apparently less inclined to be lenient todefendant—and defendant was arrested on new charges, making it unlikely that the firstindictment would be dismissed or that he would receive a lesser sentence. Although the courtmay have encouraged defendant to withdraw his plea, defendant did so knowingly. Therefore,defendant was not deprived of the benefit of his original plea bargain; he chose to forgo that pleain hopes of obtaining a better [*3]result,which—unfortunately for him—did not materialize.
Peters, J.P., Rose, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.