| People v Johnson |
| 2015 NY Slip Op 09449 [134 AD3d 1388] |
| December 23, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vClinton Johnson, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Evan Hannay of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered June 20, 2012. The judgment convicted defendant, upon his plea ofguilty, of attempted criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted criminal possession of a weapon in the third degree (Penal Law§§ 110.00, 265.02 [1]), defendant contends that he was denied dueprocess based on the delay of 53 months and 10 days between the incident and the dateof the indictment. We reject that contention.
"A defendant's right to a speedy trial is guaranteed both by the Constitution (USConst, 6th and 14th Amdts; see Dickey v Florida, 398 US 30, 37-38; Smith vHooey, 393 US 374, 383; Klopfer v North Carolina, 386 US 213, 226) andby statute (CPL 30.20; Civil Rights Law § 12)" (People vTaranovich, 37 NY2d 442, 444 [1975]; see People v Romeo, 12 NY3d 51, 55 [2009], certdenied 558 US 817 [2009]). A defendant may also challenge, on due processgrounds, preindictment delay (see People v Singer, 44 NY2d 241, 252 [1978]),and "the factors utilized to determine if a defendant's rights have been abridged are thesame whether the right asserted is a speedy trial right or the due process right to promptprosecution" (People v Vernace, 96 NY2d 886, 887 [2001]). The inquiryinvolves weighing the factors enunciated in Taranovich: "(1) the extent of thedelay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether ornot there has been an extended period of pretrial incarceration; and (5) whether or notthere is any indication that the defense has been impaired by reason of the delay"(Taranovich, 37 NY2d at 445; see Vernace, 96 NY2d at 887). "Generallywhen there has been a protracted delay, certainly over a period of years, the burden is onthe prosecution to establish good cause" (Singer, 44 NY2d at 254).
Preliminarily, we note with respect to the first factor, i.e., the extent of the delay, that"[t]here is no specific temporal period by which a delay may be evaluated or considered'presumptively prejudicial' " (Romeo, 12 NY3d at 56). "Where the delayis lengthy, an examination of the other factors is triggered, and the length of the delaybecomes one factor in that inquiry" (id.). Although the 53-month and 10-daypreindictment delay in this case was substantial, we discern no special circumstances inthis case that impaired defendant's right to a fair trial (see People v Velez, 22 NY3d 970, 972 [2013]).Furthermore, the record of the Singer hearing demonstrates with respect to thesecond factor, i.e., the reason for the delay, that the People established good cause for thedelay in prosecuting defendant (see id.). We conclude that the People's decisionto bring charges several years later "was not an abuse of the significant amount ofdiscretion that the People must of necessity have, and there is no indication that thedecision was made in anything other than good faith" (People v Decker, 13 NY3d12, 15 [2009]).
With respect to the third factor, i.e., the nature of the underlying charges, heredefendant [*2]was charged with three counts of burglaryin the first degree, two counts of robbery in the first degree, two counts of robbery in thesecond degree, and criminal possession of a weapon in the second degree. Those crimesare undoubtedly serious (see e.g.People v Hill, 106 AD3d 1497, 1498 [2013]; People v Bradberry, 68 AD3d 1688, 1690-1691 [2009],lv denied 14 NY3d 838 [2010]; People v Gwynn, 161 AD2d 1174, 1174[1990], lv denied 76 NY2d 789 [1990]).
With respect to the fourth factor, i.e., whether there has been an extended period ofpretrial incarceration, it is undisputed that defendant was incarcerated on unrelatedcharges throughout most of the period between the incident and the filing of theindictment. We thus conclude that " 'the delay caused no further curtailment of[defendant's] freedom' " (People v Jenkins, 2 AD3d 1390, 1391 [2003]; see People v Doyle, 50 AD3d1546, 1546 [2008]; Peoplev Robinson, 49 AD3d 1269, 1269-1270 [2008], lv denied 10 NY3d 869[2008]; People v Striplin,48 AD3d 878, 879 [2008], lv denied 10 NY3d 871 [2008]). Moreover, thedelay cannot be said to have prevented the possibility of defendant serving a concurrentsentence with a previously imposed term of incarceration (cf. Singer, 44 NY2d at252-253).
Finally, with respect to the fifth factor, i.e., whether the defense was impaired byreason of the delay, we are unable to discern any prejudice suffered by defendant as aresult of the delay, and his conclusory assertions of prejudice are insufficient to supportthat contention (see People vOrtiz, 16 AD3d 1130, 1130 [2005], lv denied 5 NY3d 766 [2005]). Inany event, even assuming, arguendo, that defendant suffered some prejudice as a resultof the delay, we note that "a determination made in good faith to defer commencement ofthe prosecution for further investigation[,] or for other sufficient reasons, will not deprivethe defendant of due process of law even though the delay may cause some prejudice tothe defense" (Singer, 44 NY2d at 254). Present—Scudder, P.J., Smith,Carni and Lindley, JJ.