People v. Johnson

193 A.D.3d 1429

147 N.Y.S.3d 823

The PEOPLE of the State of New York, Respondent,

v.Ronald K. JOHNSON, Defendant-Appellant. (Appeal No. 1.)

1244

KA 17-00529

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: April 30, 2021

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN L. NELSON OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, WINSLOW, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal from the judgment insofar as it imposed sentence is unanimously dismissed and the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of rape in the second degree ( Penal Law § 130.30 [1] ) in full satisfaction of a two-count indictment charging him with rape in the first degree under section 130.35 (2) and rape in the second degree under section 130.30 (1). Defendant contends that County Court erred in denying his motion to dismiss the indictment on the ground that, inter alia, his state constitutional due process rights were violated by extensive preindictment delay. We reject that contention and affirm.

The Court of Appeals "ha[s] long held that ‘unreasonable delay in prosecuting a defendant constitutes a denial of due process of law’ " under article 1, section 6 of the New York Constitution ( People v. Singer , 44 N.Y.2d 241, 253, 405 N.Y.S.2d 17, 376 N.E.2d 179 [1978], quoting People v. Staley , 41 N.Y.2d 789, 791, 396 N.Y.S.2d 339, 364 N.E.2d 1111 [1977] ). The " Taranovich factors [are] employed to determine whether there has been a violation of the due process right to prompt prosecution" ( People v. Decker , 13 N.Y.3d 12, 15, 884 N.Y.S.2d 662, 912 N.E.2d 1041 [2009] ; see People v. Taranovich , 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975] ). Those factors are: "(1) the extent 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 the delay" ( Taranovich , 37 N.Y.2d at 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 ). Where, as here, "there has been a protracted delay, [i.e.,] a period of years, the burden is on the prosecution to establish good cause" for the delay ( Singer , 44 N.Y.2d at 254, 405 N.Y.S.2d 17, 376 N.E.2d 179 ). "[N]o one factor [is] dispositive of a violation, and [there are] no formalistic precepts by which a deprivation of the right can be assessed" ( People v. Romeo , 12 N.Y.3d 51, 55, 876 N.Y.S.2d 666, 904 N.E.2d 802 [2009], cert denied 558 U.S. 817, 130 S.Ct. 63, 175 L.Ed.2d 24 [2009] ).

Here, the parties agree that the first factor favors defendant and that the fourth factor favors the People. Moreover, we will assume, arguendo, that the People failed to establish "good cause" for the "protracted" preindictment delay in this case such that the second and third factors favor defendant ( Singer , 44 N.Y.2d at 254, 405 N.Y.S.2d 17, 376 N.E.2d 179 ).

We nevertheless conclude that, after considering all of the relevant factors, defendant's state constitutional due process rights were not violated because his defense to the charge of which he was convicted was not prejudiced in any conceivable respect by the preindictment delay (see People v. Grady , 111 A.D.2d 932, 932, 491 N.Y.S.2d 41 [2d Dept. 1985] ). Specifically, although defendant correctly notes that the extensive preindictment delay undoubtedly compromised his ability to contemporaneously investigate the facts and circumstances of the underlying incident, he concedes that no amount of contemporaneous investigation could have revealed a defense to the strict-liability crime of which he was ultimately convicted, namely, rape in the second degree under Penal Law § 130.30 (1). Thus, under the circumstances of this case, the preindictment delay could not have "impaired" defendant's ability to defend himself on the charge of which he was convicted ( Taranovich , 37 N.Y.2d at 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 ). Whether and to what extent the preindictment delay impaired defendant's ability to defend himself on the separate count of rape in the first degree is irrelevant to our analysis because defendant was not convicted of that count (see generally People v. Brown , 53 N.Y.2d 979, 981, 441 N.Y.S.2d 662, 424 N.E.2d 549 [1981] ; People v. Singh , 185 A.D.3d 480, 480, 125 N.Y.S.3d 547 [1st Dept. 2020], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 372, 152 N.E.3d 1174 [2020] ; People v. Cutaia , 167 A.D.3d 1534, 1534-1535, 90 N.Y.S.3d 444 [4th Dept. 2018], lv denied 33 N.Y.3d 947, 100 N.Y.S.3d 195, 123 N.E.3d 854 [2019] ; People v. Yu , 166 A.D.2d 249, 250, 564 N.Y.S.2d 300 [1st Dept. 1990], lv denied 76 N.Y.2d 992, 563 N.Y.S.2d 781, 565 N.E.2d 530 [1990] ). In that respect, we emphasize that defendant did not plead guilty to rape in the second degree as a lesser-included offense of rape in the first degree. Moreover, defendant's assertion that the preindictment delay deprived him of the ability to negotiate a sentence that would have run concurrently with a prior unrelated burglary sentence is without merit as "there is no reason to believe that his counsel ... would have been able to obtain a plea [with concurrent time]" ( People v. Heywood , 138 A.D.3d 607, 608, 30 N.Y.S.3d 77 [1st Dept. 2016], lv denied 28 N.Y.3d 971, 43 N.Y.S.3d 259, 66 N.E.3d 5 [2016] ; see People v. Allende , 206 A.D.2d 640, 642, 614 N.Y.S.2d 612 [3d Dept. 1994], appeal dismissed 84 N.Y.2d 921, 621 N.Y.S.2d 510, 645 N.E.2d 1209 [1994] ), and defendant does not assert...