| People v Burroughs |
| 2013 NY Slip Op 05150 [108 AD3d 1103] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CraigBurroughs, Appellant. |
—[*1] Craig Burroughs, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered July 19, 2011. The judgment convicted defendant, upon a jury verdict, ofsodomy in the first degree (two counts), sodomy in the third degree (two counts), rape inthe first degree and rape in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reversing those parts convicting defendant of rape in the third degree undercount six of the indictment, sodomy in the first degree under counts one and three of theindictment, and sodomy in the third degree under counts two and four of the indictmentand dismissing those counts, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jurytrial of rape in the first degree (Penal Law § 130.35 [1]), rape in the third degree(§ 130.25 [2]), and two counts each of sodomy in the first degree (former §130.50 [1]) and sodomy in the third degree (former § 130.40 [2]). We agree withdefendant that Supreme Court erred in denying his omnibus motion to the extent that itsought to dismiss as time-barred all counts of the indictment except that charging rape inthe first degree.
The facts relevant to this issue are not in dispute. On December 10, 2002, the victimwas raped and sodomized by a stranger who dragged her into the woods while she waswalking to school. Following the attack, the victim was taken to the hospital where arape kit was performed. The rape kit yielded a DNA profile of the male perpetrator, andthat profile was entered in the statewide DNA databank in January 2003. Althoughdefendant's DNA profile had been in the statewide databank since 1998, he did notbecome a suspect until January 2008, when the Division of Criminal Justice Servicesnotified local authorities that defendant's DNA profile matched that of the perpetrator.
For reasons that are unclear from the record, the police did not arrest defendant untilmore than two years later, on February 25, 2010, which was more than seven years afterthe crimes at [*2]issue were committed. An indictmentwas later filed charging defendant with rape in the first and third degrees, and two countseach of sodomy in the first and third degrees. Notably, although the crimes of sodomy inthe first and third degree had in 2003 been renamed criminal sexual act in the first andthird degree, respectively, that change in nomenclature was not retroactive and did notapply to defendant, who was thus properly charged with sodomy rather than criminalsexual act (see L 2003, ch 264, § 72 [eff Nov. 1, 2003]). In his omnibusmotion, defendant sought, inter alia, dismissal of all of the charges on the ground thatthey were untimely because he was not charged within the applicable statute oflimitations. The court denied the motion, and defendant was later found guilty of allcounts of the indictment.
With respect to the merits, we note that, in 2002, when the crimes were committed,the statute of limitations for the charged offenses was five years (see CPL 30.10[former (2) (b)]). Because he was not charged until more than seven years later,defendant raised a facially viable statute of limitations defense, and the burden thusshifted to the People to prove beyond a reasonable doubt that the statute of limitationswas tolled or otherwise inapplicable (see People v Kohut, 30 NY2d 183, 186[1972]; People v Dickson, 133 AD2d 492, 494-495 [1987]; see also People vKnobel, 94 NY2d 226, 229 [1999]). We conclude that the People satisfied theirburden with respect to the charge of rape in the first degree. As the People correctlycontend, the legislature amended CPL 30.10 in 2006 so as to abolish the statute oflimitations for four sex offenses, including rape in the first degree and criminal sexual actin the first degree (see L 2006, ch 3, § 1). The amendment applied not onlyto crimes committed after its effective date of June 23, 2006, but also to offenses thatwere not yet time-barred (see L 2006, ch 3, § 5 [a]). Because the charge ofrape in the first degree against defendant was not time-barred when the amendment tookeffect, the amendment applied to count five of the indictment, charging rape in the firstdegree.
Contrary to the People's contention, however, the 2006 amendment to CPL 30.10 didnot apply to sodomy in the first degree, as charged in counts one and three of theindictment. Although, as noted, the amendment abolished the statute of limitations forcriminal sexual act in the first degree, it made no mention of sodomy in the first degree(see L 2006, ch 3, § 1). The legislature had therefore, perhaps unwittingly,kept the statute of limitations for sodomy in the first degree at five years. In 2008, thelegislature corrected the apparent oversight by again amending CPL 30.10, this time bystriking "criminal sexual act in the first degree" from the list of offenses for which thestatute of limitations was abolished and substituting in its place the phrase "a crimedefined or formerly defined in section 130.50 of the penal law" (L 2008, ch 467, §1; see CPL 30.10 [2] [a]). The legislative history of the 2008 amendmentexplicitly acknowledges that the 2006 amendment had not eliminated the statute oflimitations for acts of first degree sodomy committed before November 1, 2003, i.e., theeffective date of the non-retroactive nomenclature change (see Senate IntroducerMem in Support, Bill Jacket, L 2008, ch 467 at 9; Letter from State Assembly Member,July 28, 2008, Bill Jacket, L 2008, ch 467 at 7). The statute, as amended in 2008,abolished the statute of limitations for crimes of sodomy in the first degree committedafter the effective date of August 5, 2008 and for those crimes that were not yettime-barred as of that date (see L 2008, ch 476, § 2). The sodomy chargesagainst defendant, however, had expired under the former five-year statute of limitationsapproximately nine months before the effective date of the 2008 amendment, and thusthose charges are time-barred despite the amendment. Additionally, we note that it is wellestablished that a change to the statute of limitations may not be retroactively applied torevive charges that are already time-barred (see Stogner v California, 539 US607, 609-621 [2003]; People ex rel. Reibman v Warden of County Jail at Salem,242 App Div 282, 286 [1934]).
The People's alternative contention that the statute of limitations on all counts wastolled until 2006 pursuant to CPL 30.10 (4) (a) (ii) because "the whereabouts of thedefendant were continuously unknown and continuously unascertainable by the exerciseof reasonable diligence" [*3]is also without merit.According to the People, defendant's identity as the perpetrator was not known until2006. It is undisputed, however, that defendant's DNA profile had been in the statewidedatabank since 1998, and the People offer no explanation as to why his identity could nothave been ascertained sooner by the exercise of reasonable diligence, especially giventhat the perpetrator's DNA was entered into the databank in January 2003 (cf. People v Bradberry, 68AD3d 1688, 1689-1690 [2009], lv denied 14 NY3d 838 [2010]). We thusconclude that the People failed to prove beyond a reasonable doubt that the tollingprovision of CPL 30.10 (4) (a) applies (see People v Landy, 125 AD2d 703,704-705 [1986], lv denied 69 NY2d 882 [1987]). The court therefore erred inrefusing to dismiss as untimely those counts of the indictment charging defendant withsodomy in the first degree, sodomy in the third degree, and rape in the third degree, andwe modify the judgment of conviction accordingly. The court otherwise properly deniedthe motion.
In light of the above analysis, we need not address defendant's contention that thesodomy counts were rendered duplicitous by the victim's trial testimony. We rejectdefendant's further contention that the evidence is legally insufficient to prove hisidentity as the rapist (see generally People v Bleakley, 69 NY2d 490, 495[1987]). The People's expert testified at trial that defendant's DNA matched the DNAobtained from the victim's rape kit and that the odds that the DNA from the rape kit camefrom someone other than defendant were 1 in 49.9 billion. In addition, defendantadmitted at trial that he was not incarcerated and was living in Buffalo on December 10,2002, the date on which the crimes were committed, and that he did not have a twinbrother, who is the only person who could have shared his DNA. Although the victimwas unable to identify defendant at trial, i.e, she testified that her attacker ordered her notto look at him, the DNA evidence alone "established defendant's identity beyond areasonable doubt" (People vHarrison, 22 AD3d 236, 236 [2005], lv denied 6 NY3d 754 [2005];see People v Rush, 242 AD2d 108, 110 [1998], lv denied 92 NY2d 860[1998], lv denied upon reconsideration 92 NY2d 905 [1998]; see also Peoplev Knight, 280 AD2d 937, 937-938 [2001], lv denied 96 NY2d 864 [2001]).Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we further conclude that the verdict is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495).
Although we agree with defendant that he should not have been shackled when hetestified before the grand jury, we conclude that reversal on that basis is not warranted.As the People correctly contend, the prosecutor's cautionary instructions to the grandjurors, which forbade them from drawing any negative inferences from the shackling,"were sufficient to dispel any potential prejudice" to defendant (People v Muniz, 93 AD3d871, 872 [2012], lv denied 19 NY3d 965 [2012], reconsiderationdenied 19 NY3d 1028 [2012]; see People v Gilmore, 12 AD3d 1155, 1156 [2004]; People v Pennick, 2 AD3d1427, 1427-1428 [2003], lv denied 1 NY3d 632 [2004]; People vFelder, 201 AD2d 884, 885 [1994], lv denied 83 NY2d 871 [1994]).Moreover, the evidence presented to the grand jury was overwhelming, and it cannot besaid that defendant's improper shackling amounted to an "instance[ ] where prosecutorialwrongdoing, fraudulent conduct or errors potentially prejudice[d] the ultimate decisionreached by the [g]rand [j]ury" such that dismissal of the indictment is warranted(People v Huston, 88 NY2d 400, 409 [1996]; cf. People v Buccina, 62 AD3d 1252, 1254 [2009], lvdenied 12 NY3d 913 [2009]; see generally People v Clyde, 18 NY3d 145, 153-154[2011]).
We reject defendant's contention that his sentence is unduly harsh and severe.Although the court imposed the maximum period of imprisonment for rape in the firstdegree, namely, a determinate term of 25 years, plus five years of postrelease supervision(see Penal Law §§ 70.02 [1] [a]; 70.06 [6] [a]; 70.45 [former (2)];130.35 [1]), we perceive no basis in the record to modify that sentence as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [b]). We note thatdefendant has an extensive criminal history, which includes six prior felony convictions,and that in the instant matter he brutally raped a 15-year-old girl who was on her way toschool.[*4]
Having reviewed defendant's remainingcontentions, including those raised in his pro se supplemental brief, we conclude thatnone warrants reversal or further modification of the judgment of conviction.Present—Scudder, P.J., Peradotto, Lindley and Sconiers, JJ.