People v. McCarty

221 A.D.3d 1360

201 N.Y.S.3d 524

The PEOPLE of the State of New York, Respondent,

v.Joshua MCCARTY, Appellant.

113540

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

Calendar Date: October 13, 2023

Decided and Entered: November 30, 2023

Steven M. Sharp, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Ceresia, McShan and Powers, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeal from a judgment of the County Court of Schenectady County (Mark J. Caruso, J.), rendered March 21, 2022, upon a verdict convicting defendant of the crimes of predatory sexual assault against a child and endangering the welfare of a child.

In June 2019, a six-year-old child (hereinafter the victim) disclosed that defendant had engaged in certain sexual conduct toward her. Following the disclosure, the victim underwent an examination by a sexual assault nurse examiner (hereinafter SANE) and was interviewed by a Schenectady Police Department (hereinafter SPD) detective. On June 23, 2019, the same detective interviewed defendant, which interview was recorded and wherein defendant made several incriminating statements; at the conclusion of the interview, defendant was arrested. Defendant was then indicted in January 2020 with three counts of predatory sexual assault against a child, three counts of course of sexual conduct against a child in the first degree and endangering the welfare of a child. During the pendency of these proceedings, the parties engaged in extensive motion practice, including defendant's motion to suppress statements that he made during the June 23, 2019 interview, his motion to dismiss the indictment due to alleged discovery violations and the violation of his speedy trial rights and the People's motion to allow the victim to testify through live, two-way closed-circuit television (hereinafter CCTV).

Prior to the commencement of trial, the People consented to the dismissal of two counts of predatory sexual assault against a child and two counts of course of sexual conduct against a child in the first degree, such that defendant proceeded to trial on one count of predatory sexual assault against a child, one count of course of sexual conduct against a child in the first degree (as a lesser included offense of the predatory sexual assault charge) and one count of endangering the welfare of a child. After a jury trial, defendant was found guilty of predatory sexual assault against a child and endangering the welfare of a child.¹ Defendant was thereafter sentenced to the maximum permissible prison term of 25 years to life on his conviction of predatory sexual assault against a child and to a lesser concurrent jail term on his conviction of endangering the welfare of a child. Defendant appeals.

Where, as here, a defendant is charged with at least one felony, the People have six months within which they must be actually ready to proceed to trial; the calculation of such time requires computing the time elapsed from the filing of the first accusatory instrument until the People's declaration of readiness for trial, subtracting any prereadiness delays that are excludable and then adding any postreadiness delays that are actually attributable to the People and ineligible for exclusion (see CPL 30.30[1][a] ; [4]; People v. Khalil, 206 A.D.3d 1300, 1300–1301, 170 N.Y.S.3d 658 [3d Dept. 2022], lv denied 38 N.Y.3d 1188, 176 N.Y.S.3d 208, 197 N.E.3d 488 [2022], cert denied ––– U.S. ––––, 143 S.Ct. 2439, 216 L.Ed.2d 420 [2023] ; People v. Turner, 172 A.D.3d 1768, 1770, 101 N.Y.S.3d 756 [3d Dept. 2019], lv denied 34 N.Y.3d 939, 109 N.Y.S.3d 732, 133 N.E.3d 436 [2019] ). To be deemed actually ready for trial, the People's readiness declaration must be accompanied or preceded by the filing of a certificate of good faith compliance with the disclosure requirements of CPL 245.20, and the presiding court must, after an on-the-record inquiry, be satisfied of the People's actual readiness (see CPL 30.30[5] ; 245.50[3]; People v. Robbins, 206 A.D.3d 1069, 1072, 169 N.Y.S.3d 413 [3d Dept. 2022], lv denied 39 N.Y.3d 942, 177 N.Y.S.3d 530, 198 N.E.3d 773 [2022] ). The People have an ongoing duty to expeditiously disclose any CPL 245.20 materials that were previously unknown or not in the People's possession during the automatic disclosure period, and a valid certificate of compliance and readiness declaration will not be rendered illusory by subsequent diligent disclosures made in good faith (see CPL 245.50[1] ; 245.60).

Although it is uncontroverted that the People filed a certificate of compliance and a readiness declaration on January 14, 2020 and that, on that date, County Court conducted the appropriate inquiry and found that the People were actually ready for trial, defendant contends that such certificate of compliance and, by extension, the readiness declaration (see CPL 30.30[5] ; 245.50[3]), were rendered illusory by four later disclosures by the People. As to the first of these, contrary to defendant's contention, the People are not presumed to have possession or control over a report prepared by St. Anne's Institute at the behest of Albany County Department of Social Services (hereinafter Albany DSS), as those entities are not within the People's direction or control (see CPL 245.20[1] ; People v. Dalton, 27 A.D.3d 779, 782, 811 N.Y.S.2d 153 [3d Dept. 2006], lv denied 7 N.Y.3d 754, 819 N.Y.S.2d 880, 853 N.E.2d 251 [2006] ; cf. People v. Smith, 89 A.D.3d 1148, 1150, 931 N.Y.S.2d 803 [3d Dept. 2011], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ; see also People v. Thornton, 141 A.D.3d 936, 938–939, 35 N.Y.S.3d 571 [3d Dept. 2016], lv denied 28 N.Y.3d 1151, 52 N.Y.S.3d 302, 74 N.E.3d 687 [2017] ).² Defendant's second assertion – that CPL 245.20(1)(k) required automatic disclosure of the entire disciplinary record for each and every law enforcement officer involved in his case – is belied by a plain reading of the automatic disclosure statute, which requires the People to disclose "all items and information that relate to the subject matter of the case " ( CPL 245.20[1] [emphasis added]) – a limitation that is consistent with the balancing of interests espoused by the Court of Appeals in ( People v. Garrett , 23 N.Y.3d 878, 888–891, 994 N.Y.S.2d 22, 18 N.E.3d 722 [2014] ; but see People v. Valdez, 80 Misc.3d 544, 549–550, 196 N.Y.S.3d 300 [Crim. Ct., Kings County 2023] ).³ Third, defendant's argument that the People also failed to provide a complete expert disclosure by failing to tender the SANE's curriculum vitae, publications and proficiency tests is without merit, as no such documents existed and were thus "unavailable for disclosure" ( CPL 245.20[1][f] ; compare People v. Decker, 218 A.D.3d 1026, 1040, 195 N.Y.S.3d 160 [3d Dept. 2023], lv denied 40 N.Y.3d 1012, 199 N.Y.S.3d 14, 222 N.E.3d 530 [Oct. 31, 2023] ).⁴ Defendant's last allegation of a discovery failure by the People is premised on the People's failure to include the victim's therapist on their witness list until October 2021. However, the therapist, who began treating the victim in May 2021, did not become a relevant witness until October 2021 when the People made their CPL 65.20 motion to declare the victim a "vulnerable child witness" and allow her to testify through live, two-way CCTV. Overall, the record reveals that the People made diligent, good faith efforts to ascertain the existence of discoverable materials prior to filing the January 2020 certificate of compliance, that the additional disclosures were reasonable under the circumstances and that defendant was not prejudiced by the belated disclosures (see CPL 245.20[2] ; 245.50[1–a]; see also CPL 245.80 ; People v. Caruso, 219 A.D.3d 1682, 1683–1684, 197 N.Y.S.3d 367 [4th Dept. 2023] ).

As the People's January 14, 2020 certificate of compliance and readiness declaration remained valid and County Court properly confirmed the People's actual readiness (see CPL 30.30[5] ; People v. Robbins, 206 A.D.3d at 1072, 169 N.Y.S.3d 413 ), we must now calculate whether there is more than six months of time chargeable to the People (see CPL 30.30[1][a] ; People v. Friday, 160 A.D.3d 1052, 1054, 74 N.Y.S.3d 391 [3d Dept. 2018] ). From the filing of the first accusatory instrument on June 24, 2019⁵ to the People's January 14, 2020 readiness declaration, 204 days elapsed, and the People bear the burden of establishing that specific periods of prereadiness delay should be excluded from the calculation (see People v. Catalan, 204 A.D.3d 1240, 1241, 166 N.Y.S.3d 405 [3d Dept. 2022], lv denied 38 N.Y.3d 1132, 172 N.Y.S.3d 867, 193 N.E.3d 532 [2022] ). Here, the People contend that defendant's October 31, 2019 waiver stopped the speedy trial clock and that, because said waiver was never revoked, the clock never restarted. We disagree. While true that defendant's waiver stated that it would remain effective "until such date as [defendant] provide[s] written notice to the People," and that defendant never filed such written revocation, it is also clear that the waiver was given in connection with defendant's consideration of the People's preindictment plea offer. Following defendant's waiver, the People set December 20, 2019 as an expiration date for the offer and established an end date to defendant's tethered speedy trial waiver (see People v. O'Day, 200 A.D.3d 1495, 1497, 159 N.Y.S.3d 230 [3d Dept. 2021] ). As such, only the 50–day period between the October 31, 2019 waiver and December 20, 2019, when the speedy trial clock began to run again, is excludable, and subtracting such period results in a prereadiness delay of 154 days, well below the CPL 30.30(1)(a) threshold (see People v. O'Day, 200 A.D.3d at 1497, 159 N.Y.S.3d 230 ; People v. Wheeler, 159 A.D.3d 1138, 1141, 72 N.Y.S.3d 220 [3d Dept. 2018], lv denied 31 N.Y.3d 1123, 81 N.Y.S.3d 383, 106 N.E.3d 766 [2018] ).⁶ Consequently, defendant's speedy...