People v. Shrubsall

2023 NY Slip Op 03610

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. WILLIAM C. SHRUBSALL, ALSO KNOWN AS ETHAN MACLEOD, DEFENDANT-APPELLANT.

No. 402 KA 20-01124

Supreme Court of New York, Fourth Department

June 30, 2023

WILLIAM C. SHRUBSALL, DEFENDANT-APPELLANT PRO SE.

BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND OGDEN, JJ.

Appeal from a judgment of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), rendered July 29, 2020. The judgment convicted defendant, upon his plea of guilty, of bail jumping in the first degree and criminal contempt in the second degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum Defendant appeals from a judgment convicting him, upon his plea of guilty, of bail jumping in the first degree (Penal Law § 215.57) and criminal contempt in the second degree (§ 215.50 [3]). The charges arose after defendant, who was released on bail while on trial in May 1996 under an indictment charging him with the class B felony of sodomy in the first degree (Penal Law former

§ 130.50 [2]) and the class D felony of sexual abuse in the first degree (§ 130.65 [2]), failed to appear on the final day of trial, left an ostensible suicide note in which he suggested that he intended to kill himself by plunging over Niagara Falls, and instead absconded to Canada. The trial proceeded in defendant's absence. The jury rendered a verdict finding defendant guilty of, as relevant here sexual abuse in the first degree (§ 130.65 [2]), and defendant was sentenced in absentia in November 1996 to inter alia, an indeterminate term of 2⅓ to 7 years of imprisonment.

Defendant was subsequently charged in a March 1997 indictment with bail jumping in the first degree (Penal Law § 215.57). In the meantime, defendant assumed various aliases while living in Canada, and Canadian law enforcement later arrested defendant after he committed several violent physical and sexual attacks against women. The People obtained a superseding indictment in May 2000 charging defendant with bail jumping in the first degree (§ 215.57) and criminal contempt in the second degree (§ 215.50 [3]). In December 2001, following his convictions for various crimes in Canada, including robbery, possession of a weapon, aggravated sexual assault, and aggravated assault, defendant was declared a dangerous offender and sentenced to an indeterminate period of detention in a Canadian penitentiary up to life imprisonment, subject to periodic review for parole.

Eventually, defendant was granted parole and, in late January 2019, defendant was turned over by Canadian authorities to Niagara County law enforcement at the United States-Canada border. Defendant was arraigned the following day on the superseding indictment and Supreme Court reiterated that defendant was required to serve the sentence imposed on the sex offenses conviction following the trial from which defendant had absconded. The court subsequently denied defendant's motion insofar as it sought to dismiss the bail jumping count as defective, granted the People's motion to amend the superseding indictment and, following a hearing, denied defendant's motion insofar as it sought to dismiss the superseding indictment on the ground that the People violated his constitutional right to a speedy trial.

Defendant thereafter pleaded guilty to the counts in the superseding indictment. The court, consistent with the agreed-upon sentencing cap, sentenced defendant, in relevant part, to an indeterminate term of two to six years of imprisonment on the bail jumping count, which was to run consecutively to the sentence imposed on the prior sex offenses conviction. Defendant appeals, and we now affirm.

Defendant contends that the bail jumping count in the superseding indictment is jurisdictionally defective, and the court thus erred in granting the People's motion to amend. We reject that contention.

"An indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime-for instance, if it fails to allege that the defendant committed acts constituting every material element of the crime charged" (People v D'Angelo, 98 N.Y.2d 733, 734-735 [2002]; see People v Iannone, 45 N.Y.2d 589, 600 [1978]). In that regard, "incorporation [in an indictment] by specific reference to the statute [defining the crime charged] operates without more to constitute allegations of all the elements of the crime" (D'Angelo, 98 N.Y.2d at 735; see People v Sanford, 148 A.D.3d 1580, 1581 [4th Dept 2017], lv denied 29 N.Y.3d 1133 [2017]).

Here, the superseding indictment provided that defendant was charged with the crime of bail jumping in the first degree in violation of Penal Law § 215.57, and alleged that defendant committed acts constituting every material element of the crime charged-i.e., that defendant, having been released by court order on bail, upon condition that he would subsequently appear personally in connection with an indictment pending against him, which charged him with the commission of a class B felony, did not appear personally on the required date or voluntarily within 30 days thereafter (see § 215.57). Contrary to defendant's contention, although the superseding indictment later incorrectly specified that the class D felony of sexual abuse in the first degree (§ 130.65 [2]), rather than the class B felony of sodomy in the first degree (Penal Law former § 130.50 [2]), was the class B felony on the pending indictment, that error constituted a mere "misnomer in the designation of the crime" that "d[id] not render [the superseding] indictment jurisdictionally defective" with respect to the bail jumping count (People v Rodriguez, 97 A.D.3d 246, 252 [1st Dept 2012], lv denied 19 N.Y.3d 1028 [2012]; see People v Bishop, 115 A.D.3d 1243, 1244 [4th Dept 2014], lv denied 23 N.Y.3d 1018 [2014], reconsideration denied 24 N.Y.3d 1082 [2014]).

Defendant further contends that the People's extraordinary postindictment delay in prosecuting the case deprived him of his constitutional right to a speedy trial, and the court thus erred in denying his motion insofar as it sought to dismiss the superseding indictment on that ground. We reject that contention.

"By statute and constitutional law, New York guarantees criminal defendants the right to a speedy trial and prompt prosecution" (People v Regan, - N.Y.3d -, -, 2023 NY Slip Op 01353, *3 [2023]; see NY Const, art I, § 6; CPL 30.20; People v Vernace, 96 N.Y.2d 886, 887 [2001]; People v Staley, 41 N.Y.2d 789, 791 [1977]). Courts "analyze constitutional speedy trial claims using the five factors set forth in People v Taranovich (37 N.Y.2d 442 [1975]): '(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'" (People v Wiggins, 31 N.Y.3d 1, 9-10 [2018]). "The Taranovich framework is a holistic one-that is, 'no one factor or combination of the factors... is necessarily decisive or determinative of the speedy trial claim'" (People v Johnson, 39 N.Y.3d 92, 96 [2022]; see Wiggins, 31 N.Y.3d at 10; People v Romeo, 12 N.Y.3d 51, 55 [2009], cert denied 558 U.S. 817 [2009]). "[T]he factors must be evaluated 'on an ad hoc basis,'" which "mean[s] that the analysis must be tailored to the facts of each case" (Johnson, 39 N.Y.3d at 96; see Romeo, 12 N.Y.3d at 55).

With respect to the first factor, "the extent of the delay[] is of critical importance because 'all other factors being equal, the greater the delay the more probable it is that the accused will be harmed thereby'" (Romeo, 12 N.Y.3d at 56). "Where the delay is lengthy, an examination of the other factors is triggered, and the length of delay becomes one factor in that inquiry" (id.). Here, we agree with defendant that the delay between the superseding indictment and his arraignment thereon was an extraordinary period of 18½ years (see id.). Thus, "[a]lthough not in itself decisive, the [18½]-year delay requires close scrutiny of the other factors, especially the question of why the delay occurred" (id.; see Wiggins, 31 N.Y.3d at 10-11).

Regarding the second factor, the record establishes that the genesis of the extraordinary delay here was defendant's decision to absent himself from his ongoing sex offenses trial, leave a false suicide note, and abscond to Canada where, while using various aliases, he committed several violent physical and sexual attacks against women, thereby resulting in his convictions for various crimes, designation as a dangerous offender, and corresponding lengthy term of imprisonment in Canada (cf. Romeo, 12 N.Y.3d at 56). Thus, contrary to defendant's assertion, the court properly concluded that the initial reason for the delay was attributable solely to defendant (see People v Keating, 183 A.D.3d 595, 596 [2d Dept 2020], lv denied 35 N.Y.3d 1113 [2020]; People v Lara, 165 A.D.3d 563, 563 [1st Dept 2018], lv denied 32 N.Y.3d 1206 [2019]).

Nonetheless "[t]he fact that a defendant is incarcerated outside of the state makes it incumbent upon the People to make diligent, good faith efforts to secure [the defendant's] presence in the state for arraignment and trial" (Romeo, 12 N.Y.3d at 57). "Where[, as here,] the defendant is incarcerated in another country, failing to make an extradition request has been one factor that courts have viewed as evidencing a lack of diligent efforts on the part of the prosecution in bringing defendant to trial promptly" (id.). If,...