| People v Williams |
| 2018 NY Slip Op 05373 [163 AD3d 1283] |
| July 19, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jeffrey G. Williams, Appellant. |
Thomas F. Garner, Middleburgh, for appellant.
Susan J. Mallery, District Attorney, Schoharie (Michael L. Breen of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Schoharie County (Bartlett III, J.),rendered March 31, 2016, convicting defendant upon his plea of guilty of the crime of attemptedburglary in the third degree.
In mid-July 2011, defendant was arraigned on felony complaints charging him with twocounts of burglary in the third degree based upon allegations that he broke into certainconvenience stores and stole several thousand dollars worth of cigarettes. Following apreliminary hearing, the matters were held over for grand jury action. On August 28, 2011,Hurricane Irene, followed by Tropical Storm Lee nine days later, caused extensive floodingdamage to the Schoharie County Courthouse and the Schoharie County District Attorney's office.On September 7, 2011, as a result of "the devastation in the courts and the surroundingcommunities of Schoharie County," County Court issued an order extending the grand jury termby 60 days. The Chief Administrative Judge also issued an administrative order directing that,due to the flooding damage to the Schoharie County Courthouse, all grand jury proceedings wereto be held in the Town of Cobleskill, Schoharie County. In October 2011, noting that theSchoharie County Courthouse had remained closed since August 28, 2011 and that the "weatherand emergency flooding conditions continue[d] to prevent potential grand jurors from beingsummoned," County Court further extended the grand jury term to January 18, 2012. Meanwhile,defendant filed a pro se motion for his release based upon the alleged failure of timely grand juryaction (see CPL 190.80). On September 28, 2011, County Court granted the motion anddefendant was released from custody.
In the months that followed, the People sent defendant several notices of prospective grandjury proceedings (see CPL 190.50 [5] [a]). However, because of alleged difficulties insecuring a quorum of grand jurors and defense counsel's scheduling conflicts, a grand jury wasnot convened until early February 2012. On February 15, 2012, the grand jury handed up anindictment charging defendant with two counts of burglary in the third degree and two counts ofgrand larceny in the fourth degree. The People declared their readiness for trial on February 29,2012, and defendant was thereafter arraigned on the indictment.
Following his indictment, defendant filed an omnibus motion seeking, among other things,dismissal of the indictment on statutory and constitutional speedy trial grounds (see CPL30.20 [1]; 30.30 [1] [a]). County Court found that an issue of fact existed with respect to aportion of the alleged preindictment delay and directed that a hearing be held on defendant'sstatutory speedy trial claim. Following that hearing, which was held in August 2012, CountyCourt issued a bench decision denying defendant's motion.[FN*] Immediately thereafter, defendant pleadedguilty to burglary in the third degree, with the understanding that he would retain the right toappeal the denial of his motion to dismiss the indictment on speedy trial grounds. In accordancewith the plea agreement, County Court sentenced defendant, as a second felony offender, to aprison term of 2 to 4 years and ordered restitution in the amount of $8,500. Upon defendant'sappeal, this Court found that defendant had been incorrectly informed that he retained the right toappeal from the denial of his statutory speedy trial motion and, thus, that his plea was notknowing, intelligent and voluntary (123 AD3d 1376, 1377-1378 [2014]). Accordingly, this Courtreversed the judgment of conviction, vacated defendant's guilty plea and remitted the matter forfurther proceedings (123 AD3d at 1378).
Upon remittal, defendant—represented by new counsel—filed another omnibusmotion seeking dismissal of the indictment on speedy trial grounds. Finding that the motion"mirror[ed]" defendant's 2012 omnibus motion and that its denial of the motion had not beendisturbed on appeal, County Court treated the motion as one to reargue and, upon reargument,adhered to its original decision. At a subsequent pretrial conference, County Court granteddefendant's request to submit an application seeking dismissal of the indictment on the basis thathis constitutional right to a speedy trial had been violated. County Court ultimately denied thatmotion without a hearing. Thereafter, pursuant to a plea agreement, defendant entered anAlford plea of guilty to attempted burglary in the third degree. As contemplated by theplea agreement, County Court sentenced defendant, as a second felony offender, to1
Defendant challenges County Court's denial of his motion to dismiss the indictment onconstitutional speedy trial grounds, a contention that survives his guilty plea (see People v Guerrero, 28 NY3d110, 117-118 [2016]; People vMcCorkle, 67 AD3d 1249, 1250 [2009]). In assessing whether a defendant'sconstitutional right to a speedy trial has been violated by alleged preindictment delay, courts mustconsider the extent of the delay, the reason for the delay, the nature of the charges against thedefendant, whether there has been an extended period of pretrial incarceration and whether thedefense has been impaired by reason of the delay (see People v Taranovich, 37 NY2d442, 445 [1975]; People v Chaplin,134 AD3d 1148, 1149 [2015], lv denied 27 NY3d 1067 [2016]; People v Lanfranco, 124 AD3d1144, 1145 [2015], lv denied 25 NY3d 1203 [2015]). "[N]o one factor orcombination of the factors . . . is necessarily decisive or determinative of the speedytrial claim, but rather the particular case must be considered in light of all the factors as theyapply to it" (People v Taranovich, 37 NY2d at 445; accord People v Wiggins, 31 NY3d 1, 10 [2018]).
Upon consideration of the factors, we find that the approximately nine months between thefiling of the felony complaints and the People's declaration of readiness did not violatedefendant's constitutional right to a speedy trial. It was established at the August 2012 hearingthat, as a result of the devastating effects of Hurricane Irene and Tropical Storm Lee, a majorityof the alleged delay was attributable to an inability, over a period of several months, to secureenough grand jurors to constitute a quorum, despite diligent efforts on the part of the SchoharieCounty District Attorney's office. The evidence additionally demonstrated that some of the delaywas caused by defense counsel's requests to reschedule certain prospective grand jury dates. Inour view, this evidence established a good faith basis for the delay (see e.g. People vChaplin, 134 AD3d at 1149; Peoplev Gaston, 104 AD3d 1206, 1206 [2013], lv denied 22 NY3d 1156 [2014]).Further, the charges—two class D and two class E felonies—were serious, and itwas undisputed that, prior to his release in September 2011, defendant had been incarcerated onthe underlying charges for only a portion of the total preindictment period—88 days.Moreover, there was absolutely no indication that the defense had suffered as a result of the delay(see People v Decker, 13 NY3d12, 15 [2009]). Under these circumstances, we agree with County Court that there was noconstitutional speedy trial violation (see People v McCorkle, 67 AD3d at 1250-1251;People v Pratt, 303 AD2d 843, 843-844 [2003], lv denied 99 NY2d 657 [2003]).While defendant asserts that the evidence presented at the August 2012 hearing was insufficientto decide his constitutional speedy trial claim, the affidavit he submitted in support of his motionfailed to allege "any impairment of his defense as a result of the delay" or any other factualdispute regarding the delay that would warrant a further hearing (People v Coffaro, 52NY2d 932, 934 [1981]; see People vRuise, 86 AD3d 722, 723 [2011], lv denied 17 NY3d 861 [2011]; People vRodriguez, 210 AD2d 104, 104 [1994], lv denied 84 NY2d 1037 [1995]).Accordingly, we find no error in County Court's resolution of the motion without a hearing.
Defendant's remaining contentions, to the extent not specifically addressed herein, have beenexamined and found to be unpersuasive.
McCarthy, J.P., Lynch, Devine and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:County Court did not expresslyaddress defendant's constitutional speedy trial claim.