| People v Lowman |
| 2013 NY Slip Op 01104 [103 AD3d 976] |
| February 21, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vGeorge L. Lowman, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Chemung County(Buckley, J.), rendered December 5, 2008, convicting defendant following a nonjury trialof the crime of aggravated harassment in the second degree.
In October 2006, defendant was charged in a felony complaint with a single count ofrape in the first degree stemming from conduct that allegedly involved a then 10-year-oldchild and occurred in November 2000. Thereafter, on April 4, 2007, defendant wasindicted and charged with four counts of rape in the first degree; the first count of theindictment was based upon the conduct referenced in the underlying felony complaint,and the remaining three counts were premised upon conduct allegedly occurring inDecember 2000, January 2001 and February 2001, respectively. Shortly thereafter, thePeople announced their readiness for trial. Upon discovering a jurisdictional defect in theindictment, the People sought and obtained a superseding indictment—againcharging defendant with four counts of rape in the first degree. Defendant was arraignedon the superseding indictment—and the People announced their readiness fortrial—on January 31, 2008.
Defendant thereafter moved to dismiss the superseding indictment based uponstatutory speedy trial grounds. County Court granted the motion as to count1—arising from the November 2000 incident—but denied the motion as tothe remaining three counts. The ensuing [*2]trial resultedin a hung jury, following which—for reasons not apparent from the face of therecord—the People agreed to proceed upon a single count of aggravatedharassment in the second degree, a class A misdemeanor (see Penal Law §240.30 [3]). Defendant was found guilty of that charge after a nonjury trial uponstipulated facts and received a conditional discharge. Defendant now appeals, contendingthat he was denied his statutory right to a speedy trial.
Where, as here, a defendant is charged with at least one felony, the People must beready for trial within six months of the commencement of the underlying criminal action(see CPL 30.30 [1] [a]; People v Nelson, 68 AD3d 1252, 1253 [2009]). A criminalaction, in turn, is commenced upon the filing of the first accusatory instrument(see CPL 1.20 [16] [a]; People v Fehr, 45 AD3d 920, 922 [2007], lvdenied 10 NY3d 764 [2008]) and "includes the filing of all further accusatoryinstruments directly derived from the initial one" (CPL 1.20 [16] [b] [emphasisadded]; see People ex rel. Greenstein v Sheriff of Schenectady County, 220AD2d 190, 192 [1996]). As the first accusatory instrument filed in this matter was thefelony complaint, the issue then becomes whether the subsequentindictments—specifically, the superseding indictment—directly derivedtherefrom. If the conduct alleged in that indictment constitutes the same criminaltransaction as set forth in the felony complaint, the speedy trial clock began to run uponthe filing of the felony complaint in October 2006 (see People ex rel. Greenstein vSheriff of Schenectady County, 220 AD2d at 192-193). If, on the other hand, thesuperseding indictment "allege[d] separate and distinct criminal transactions, the speedytrial time clock commence[d] to run upon the filing of the indictment with respect to thenew charges [contained] therein" (People v Dearstyne, 230 AD2d 953, 955[1996], lv denied 89 NY2d 921 [1996]; see People v Nelson, 68 AD3d at1254; People v Fehr, 45 AD3d at 922; People v Lashway, 187 AD2d747, 748 [1992], lv denied 81 NY2d 842 [1993]), i.e., upon the filing of theoriginal indictment in April 2007.
The crux of defendant's argument on appeal is that all four counts of the supersedingindictment charging rape in the first degree (based upon incidents allegedly occurring inNovember 2000, December 2000, January 2001 and February 2001, respectively) shouldrelate back to the filing of the felony complaint because the victim's supportingdeposition, which was attached thereto, refers to multiple incidents of misconduct. As thePeople could—or should—have charged all four incidents in the felonycomplaint (either as individual counts of rape in the first degree or, more appropriately,as a single count of course of sexual conduct against a child in the first degree),defendant's argument continues, all four incidents effectively constitute a single criminaltransaction that, in turn, relates back to the filing of the felony complaint for purposes ofspeedy trial computations. We disagree.
Despite defendant's novel theory as to the manner in which he could or should havebeen charged, the People were free to seek an indictment against defendant as they sawfit based upon the crime(s) they believed had been committed. Here, although count 1 ofthe superseding indictment indeed was based on the exact same incident as set forth inthe felony complaint, counts 2, 3 and 4 charge conduct plainly arising from separate anddistinct criminal transactions. Thus, count 1 of the superseding indictment relates back tothe October 2006 felony complaint, while counts 2, 3 and 4 relate back to the filing ofthe original indictment in April 2007 (see People v Nelson, 68 AD3d at 1254;People v Dearstyne, 230 AD2d at 955; People v Lashway, 187 AD2d at748). As defendant does not contest the actual number of days chargeable to the People(78 days as to counts 2 and 3 and 53 days as to count 4), we discern no basis upon whichto disturb County Court's resolution of the speedy trial issue.[*3]
Peters, P.J., Stein and Garry, JJ., concur. Orderedthat the judgment is affirmed.