| People v Montague |
| 2015 NY Slip Op 05721 [130 AD3d 1100] |
| July 2, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael Montague, Appellant. |
O'Connell & Aronowitz, Albany (Stephen R. Coffey of counsel), forappellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Lahtinen, J. Appeals (1) from a judgment of the County Court of Albany County(Herrick, J.), rendered June 13, 2014, convicting defendant upon his plea of guilty of thecrime of possessing a sexual performance by a child (two counts), and (2) from ajudgment of said court, rendered June 27, 2014, which resentenced defendant.
On January 28, 2009, defendant's computer was seized by the Town of ColoniePolice Department (hereinafter TCPD) after a computer repair technician reported that hediscovered the computer contained what he believed to be child pornography. Thefollowing day defendant was questioned by the TCPD and, in July 2009, it obtained asearch warrant to analyze the content of defendant's computer. On December 4, 2013,defendant was indicted and charged with 26 counts of possessing a sexual performanceby a child, a class E felony. Relevant to this appeal, defendant moved to dismiss theindictment contending that the nearly five-year delay in obtaining the indictment wasunreasonable and violated his due process rights. Although defendant requested and thePeople consented to a Singer hearing (see People v Singer, 44 NY2d 241[1978]), County Court summarily denied defendant's motion. Thereafter, reserving hisright to appeal the Singer issue, defendant pleaded guilty to two counts of theindictment and, after an initial sentencing error, was resentenced to concurrent prisonterms of 1
The parties agree that there has been a protracted preindictment delay that places theburden on the People to establish good cause for that delay (see People v Decker 13 NY3d12, 14[*2][2009]; People v Singer, 44 NY2dat 253-254; People v Gallup, 224 AD2d 838, 839 [1996]). The People state intheir brief that there are no issues of fact regarding the issue before this Court and therecord on appeal provides an adequate basis to determine whether the protracted delaywas justified.[FN1]
In determining whether there is an undue delay, the trial court must consider "(1) theextent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge;(4) whether or not there has been an extended period of pretrial incarceration; and (5)whether or not there is any indication that the defense has been impaired by reason of thedelay" (People v Taranovich, 37 NY2d 442, 445 [1975]). Here, althoughdefendant was not incarcerated during the period of delay and the nature of the chargesare serious,[FN2]the extent of the delay was clearly extensive. The People attribute the delay to the factthat the matter was initially referred to the office of the United States Attorney for theNorthern District of New York for prosecution, and point to vague references ofpersonnel changes within that office, as well as that office's decision, at some point, notto prosecute.
This was not a complex legal matter and the record establishes that no furtherevidence was needed in order to charge defendant beyond that gathered in the 2009investigation conducted by the TCPD. The record indicates that the investigator from theTCPD was part of a [*3]task force that included federalinvestigators, and, according to the People, in January 2011, the task force brought thismatter to the office of the United States Attorney. At that time, it appears that defendant'sthen attorney initiated unsuccessful plea bargain negotiations. Thereafter, for reasons notentirely clear from the record, the United States Attorney declined to prosecute and theTCPD brought the file to the Albany County District Attorney's office in November2013. On this record, the People fail to establish good cause as to why they delayed inexercising their own jurisdiction to proceed with prosecution for nearly five years fromthe date of defendant's alleged crime to the date of the indictment. The fact that thismatter was initially referred to the United States Attorney and the TCPD did not bringthis file to the Albany County District Attorney until November 2013 provides nojustifiable excuse for the delay, since both offices are coordinate arms of the state in thecriminal law enforcement field and any delay occasioned by one is chargeable to both(see People v Masselli, 13 NY2d 1, 4 [1963]; People v Rivera, 298 AD2d612, 614 [2002], lv denied 99 NY2d 619 [2003]).
Under these circumstances, we find that the length of the delay is such that dismissalis the appropriate remedy, despite the absence of any actual prejudice to defendant(see People v Wheeler, 289 AD2d 959, 960 [2001]; People v Townsend,270 AD2d 720, 721 [2000]; People v Gallup, 224 AD2d at 840). Furthermore,the fact that defendant was aware of the pending charges and engaged in preindictmentplea negotiations is immaterial, as this does not excuse the People's responsibility forassuring prompt prosecution (see generally People v Staley, 41 NY2d 789, 793[1977]).
McCarthy and Rose, JJ., concur.
Peters, P.J. (dissenting). I respectfully dissent. While I agree with the majority thatthe preindictment delay at issue here was protracted, I cannot abide my colleagues'conclusion that the record on appeal provides an adequate basis upon which to determinewhether such delay was justified.
In addressing an assertion of undue delay, we "must engage in a sensitive weighing"of the five factors set forth in People v Taranovich (37 NY2d 442, 445 [1975]),namely, "(1) the extent of the delay; (2) the reason for the delay; (3) the nature of theunderlying charge; (4) whether or not there has been an extended period of pretrialincarceration; and (5) whether or not there is any indication that the defense has beenimpaired by reason of the delay" (id.; see People v Decker, 13 NY3d 12, 14-16 [2009]). "[N]oone factor or combination of the factors . . . is necessarily decisive ordeterminative . . . , but rather the particular case must be considered in lightof all the factors as they apply to it" (People v Taranovich, 37 NY2d at 445).
Four of the Taranovich factors are readily ascertainable and evaluated here.The preindictment delay, which lasted nearly four years and 10 months, was clearlyextensive. On the other hand, the underlying charges—26 counts of possessing asexual performance by a child, a class E felony (see Penal Law§ 263.16)—were very serious,[FN3] and defendant was neither [*4]incarcerated pretrial nor subjected to any actual prejudiceby reason of the delay.
The record, however, is shockingly sparse concerning the reason for thepreindictment delay. In opposition to defendant's motion to dismiss, the People assertedthat the Town of Colonie Police Department originally referred the matter to the office ofthe United States Attorney for the Northern District of New York and did not provide thePeople with defendant's file until November 2013. However, without explaining thesource of their knowledge, they go on to summarize events that took place before theyreceived the file, including unsuccessful preindictment negotiations between defensecounsel and a federal prosecutor, defendant's firing of his attorney, the assignment of anew Assistant United States Attorney to the case and the decision of the United StatesAttorney not to prosecute defendant.
The People's proffered reasons raise more questions than they answer. For example,the People did not reveal when and how they first learned that the matter had beenreferred to the United States Attorney, nor did they offer any explanation as to why theydid not prosecute defendant while he was subject to federal indictment. While theanswers to these questions, and others, may not be readily available, I find it significantthat the People consented to a Singer hearing, thereby suggesting that theypossessed additional information that could illuminate the circumstances that precipitatedthe delay.[FN4] Thatthe statements made in the sparse, 1
With so little information provided as to the precise reasons for the delay, I find it"impossible for any court to engage in th[e] [required] balancing process" (Matter ofBenjamin L., 92 NY2d 660, 670 [1999]; see People v Singer, 44 NY2d 241,255 [1978]; see generally People v Watts, 78 AD2d 1008, 1009 [1980]; People v Keane, 34 Misc 3d159[A], 2012 NY Slip Op 50439[U] *1-2 [App Term, 2d Dept, 9th & 10th JudDists 2012]), and am unable to fathom why County Court failed to conduct aSinger hearing. Although the reason for the delay "may not be determinative, itmight be relevant in relation to the other enumerated factors" (Matter of BenjaminL., 92 NY2d at 670 [internal citation omitted]), particularly in light of the seriousnature of the charges, the fact that defendant was not incarcerated pretrial and theabsence of any demonstrated prejudice to defendant. While I am mindful that the Peoplebear "the burden of establishing the reasons for the delay, [their] failure to do so on thisrecord should not be conclusive" (id.; see People v Singer, 44 NY2d at255). In my view, a genuine injustice would result were our Court to dismiss this mostserious indictment without affording the People an "opportunity to present additionalevidence" (People v Singer, 44 NY2d at 255) so as to allow County Court to fully"explore the reason for the delay" and engage in a sensitive balancing of theTaranovich factors (Matter of Benjamin L., 92 NY2d at 670; seegenerally People v Watts, 78 AD2d at 1009). Accordingly, in accordance withPeople v Watts (78 AD2d at 1009), I would hold the appeal in abeyance andremit the matter to County Court for a Singer hearing and determination before adifferent judge.
Ordered that the judgments are reversed, on the law, and indictment dismissed.
Footnote 1:As the dissentacknowledges, the People have taken the position on appeal that the matter should bedecided on this record and not remitted for a Singer hearing. Inasmuch as "theparties are free to chart their own procedural course and may fashion the basis uponwhich a particular controversy will be resolved" (People v Tatro, 245 AD2d1040, 1040-1041 [1997] [internal quotation marks and citations omitted]; see Peoplev Correa, 197 AD2d 430, 432 [1993], lv denied 82 NY2d 892 [1993]), it isnot for us to point out the gaps in the People's proof and then remit to afford the Peoplean opportunity to submit additional proof to meet their burden, particularly when they donot seek such an opportunity. There is no indication that the People had taken such aposition regarding not remitting for a hearing in People v Watts (78 AD2d 1008[1980]), a case upon which the dissent relies.
Footnote 2:We agree with thedissent that these crimes are serious. However, analysis of this factor is "not. . . dependent upon what one is charged with, but rather that the prosecutormay understandably be more thorough and precise in his [or her] preparation for the trialof a [serious felony]" (People v Taranovich, 37 NY2d 442, 446 [1975]; seePeople v Johnson, 38 NY2d 271, 277-278 [1975]). "It should not be assumed. . . that all serious offenses require a slow and careful preparation thatjustifies extended delay [and] [a] court still focuses on the particular facts of a case todetermine its simplicity or complexity" (3 Kamins, Mehler, Schwartz & Shapiro,New York Criminal Prac § 26.03 [6]). This record reveals neither acomplex case nor that preparation for the case had anything to do with the delay (seePeople v Johnson, 38 NY2d at 277).
Footnote 3:Specifically, defendantwas charged with the possession of 26 digital video files containing graphic anddisturbing titles such as "baby rape," "family fun dad teaches bro and sis abt 9,10 kid sexincest," "illegal Lolita daughter incest," "child prostitute XXX HC Pedo," "Bedtime RapeUntil Cum private pedo child girl," "Two 7,8 Yr. Old Girls Gives Hand-Job to Man" and"XXX—Incest—5 yo raped, hymen penetrated."
Footnote 4:I am not persuaded that aSinger hearing is unnecessary simply because the People—in urging thisCourt to affirm County Court's denial of the motion—appeared to say as much intheir submissions to this Court and at oral argument.