Opinion
111085
10-20-2022
The PEOPLE of the State of New York, Respondent, v. Demetrius L. MACK, Appellant.
Christopher Hammond, Cooperstown, for appellant, and appellant pro se. Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.
Christopher Hammond, Cooperstown, for appellant, and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.
Before: Garry, P.J., Lynch, Aarons, Pritzker and McShan, JJ.
MEMORANDUM AND ORDER
Garry, P.J. Appeal from a judgment of the County Court of Chemung County (Christopher P. Baker, J.), rendered January 7, 2019, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.
In June 2017, defendant was charged by indictment with multiple crimes stemming from allegations that, on September 25, 2015, he attempted to shoot and kill the victim with a loaded firearm in the City of Elmira, Chemung County. Defendant later moved for, among other relief, dismissal of the indictment due to the roughly 21–month delay between the alleged crimes and his indictment. County Court denied that motion, and defendant ultimately pleaded guilty to one count of criminal possession of a weapon in the second degree in satisfaction of the charges. County Court then sentenced him, as a second felony offender and in accord with the plea agreement, to a prison term of eight years followed by five years of postrelease supervision. Defendant appeals.
Initially, defendant forfeited his challenge to the legal sufficiency of the evidence presented to the grand jury by pleading guilty (see People v. Hansen, 95 N.Y.2d 227, 233, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. Carston, 163 A.D.3d 1166, 1167, 80 N.Y.S.3d 724 [2018], lv denied 32 N.Y.3d 1002, 86 N.Y.S.3d 760, 111 N.E.3d 1116 [2018] ). To the extent that defendant argues that the integrity of the grand jury proceeding was impaired, this challenge survives his guilty plea (see CPL 210.35[5] ; People v. Hansen, 95 N.Y.2d at 231–232, 715 N.Y.S.2d 369, 738 N.E.2d 773 ). However, defendant has failed to support his allegation that the People presented false evidence to the grand jury (see People v. Sammeth, 190 A.D.3d 1112, 1116, 139 N.Y.S.3d 435 [3d Dept. 2021], lv denied 36 N.Y.3d 1123, 146 N.Y.S.3d 224, 169 N.E.3d 582 [2021] ). Accordingly, we do not find that the indictment should be dismissed on this basis.
Defendant's assertion that his constitutional right to a speedy trial was violated by the roughly 21–month period between the alleged crimes and the indictment survives his guilty plea (see People v. Guerrero, 28 N.Y.3d 110, 117, 42 N.Y.S.3d 80, 65 N.E.3d 51 [2016] ; People v. Lende, 190 A.D.3d 1110, 1110, 139 N.Y.S.3d 715 [3d Dept. 2021], lv denied 36 N.Y.3d 1121, 146 N.Y.S.3d 210, 169 N.E.3d 568 [2021] ). An unreasonable preindictment delay denies a defendant due process of law (see People v. Ruise, 86 A.D.3d 722, 722, 926 N.Y.S.2d 754 [3d Dept. 2011], lv denied 17 N.Y.3d 861, 932 N.Y.S.2d 27, 956 N.E.2d 808 [2011] ; People v. Morris, 25 A.D.3d 915, 916, 807 N.Y.S.2d 228 [3d Dept. 2006], lv denied 6 N.Y.3d 851, 816 N.Y.S.2d 757, 849 N.E.2d 980 [2006] ), and, where the delay is protracted, it is the People's burden to establish a good cause justification therefor (see People v. Singer, 44 N.Y.2d 241, 254, 405 N.Y.S.2d 17, 376 N.E.2d 179 [1978] ; People v. Young, 190 A.D.3d 1087, 1093, 139 N.Y.S.3d 718 [3d Dept. 2021], lv denied 39 NY3d 1102 [2021]). Our review of both speedy trial and due process claims includes the following factors: "(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. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975] ; see People v. Ruise, 86 A.D.3d at 722–723, 926 N.Y.S.2d 754 ).
The 21–month period between the alleged crimes and indictment was protracted (see People v. Williamson, 77 A.D.3d 1183, 1185, 909 N.Y.S.2d 817 n. [3d Dept. 2010] ; People v. Morris, 25 A.D.3d at 916, 807 N.Y.S.2d 228 ). The People have established that this delay was due to the initial lack of cooperation of the victim. The People submitted the charges against defendant to a grand jury shortly after the victim became willing to provide corroborating testimony. Here, "the inherently discretionary and subjective prosecutorial determination of what constituted sufficient evidence to successfully prosecute defendant justified the delay" ( People v. Denis, 276 A.D.2d 237, 248, 716 N.Y.S.2d 718 [3d Dept. 2000], lv denied 96 N.Y.2d 782, 725 N.Y.S.2d 646, 749 N.E.2d 215 [2001] ; see People v. Singer, 44 N.Y.2d at 254, 405 N.Y.S.2d 17, 376 N.E.2d 179 ). Further, the charges were serious, such that the People "may be expected to proceed with far more caution and deliberation than [they] would expend on a relatively minor offense" ( People v. Taranovich, 37 N.Y.2d at 446, 373 N.Y.S.2d 79, 335 N.E.2d 303 ; see People v. Regan, 196 A.D.3d 735, 737, 150 N.Y.S.3d 820 [3d Dept. 2021] ). In the context of similarly serious charges, preindictment delays of greater length than presented here have been allowed (see e.g. People v. Abreu, 195 A.D.3d 1152, 1155–1156, 150 N.Y.S.3d 146 [3d Dept. 2021], lv denied 37 N.Y.3d 1144, 159 N.Y.S.3d 348, 180 N.E.3d 512 [2021] ; People v. Young, 190 A.D.3d at 1093–1094, 139 N.Y.S.3d 718 ). Significantly, defendant was not incarcerated in connection with these charges during the challenged preindictment period, and he has not demonstrated any impairment to his defense. Upon weighing the relevant factors, we find that the preindictment delay did not violate defendant's due process rights.
Lynch, Aarons, Pritzker and McShan, JJ., concur.
ORDERED that the judgment is affirmed.