People v McKeon

[*1] People v McKeon 2017 NY Slip Op 50245(U) Decided on February 23, 2017 Justice Court Of The Village Of Kinderhook, Columbia County Dellehunt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 23, 2017
Justice Court of the Village of Kinderhook, Columbia County

The People of the State of New York

against

Michael McKeon, Defendant.



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FOR THE PEOPLE:

Paul Czajka, Esq.

Columbia County District Attorney

325 Columbia Street

Suite 260

Hudson, New York 12534

By: Joyce Crawford, Assistant District Attorney

FOR THE DEFENDANT:

Gregory D. Cholakis, Esq.

Attorney for Defendant

514 Grand Street

Troy, New York 12180
David A. Dellehunt, J.

On or about April 10, 2015, defendant was charged with two Felonies: Grand Larceny in the Fourth Degree in violation of Penal Law §155.30(1), and Falsifying Business Records in the First Degree in violation of Penal Law §175.10. The People declared readiness in writing on April 13, 2015 and the defendant was arraigned on April 20, 2015. On April 27, 2015 defendant waived his right to a preliminary hearing, right to a speedy trial, and right to be indicted within 45 days. By letter dated April 25, 2016 the defendant's counsel withdrew "all previously-issued waivers". By Order dated September 22, 2016 the County Court transferred the case back to the Village Court for reconsideration of the action to be taken. On or about September 28, 2016 the People filed a two count Superseding Prosecutor's Information charging the defendant with two [*2]Class A Misdemeanors: Petit Larceny in violation of Penal Law §155.25 and Falsifying Business Records in the Second Degree in violation of Penal Law §175.05(1). By letter dated September 28, 2016 the People announced readiness. Defendant was arraigned on the new charges on December 5, 2016; on said date the People stated on the record that they "declined to prosecute", and refused to provide the Court with any further explanation. Defense counsel inquired whether the Court would consider a motion to dismiss the matter based upon the People's refusal to prosecute; the Court indicated that it was precluded from dismissing the case on said grounds in accordance with Donnaruma v. Carter, 41 Misc 3d 195, 204-205 (2013), aff. 113 AD3d 993 (3rd Dept. 2014), aff. 25 NY3d 1011 (2015), but indicated that the denial of the request was without prejudice to defense counsel bringing any additional motions under CPL §170.30.

Defendant thereafter moved by written motion for an order dismissing the instant case in the interests of justice pursuant to CPL §170.40. The People opted not to respond to defendant's written motion. By decision and order dated January 4, 2017 the Court denied defendant's motion to dismiss in the interests of justice.

Defendant now moves by written motion for an order dismissing the case on the grounds that (1) defendant was denied his statutory right to a speedy trial pursuant to CPL §30.30, (2) defendant was denied his constitutional right to a speedy trial pursuant to CPL §30.20, (3) the Superseding Prosecutor's Informations are insufficient on their face pursuant to CPL §255.10(1)(b), and (4) the action should be terminated pursuant to CPL §180.85. In the alternative, defendant requests that he be allowed to file additional motions if necessary. The People again declined to submit any papers in response to defendant's written motion.

The People served a written notice of readiness for trial pursuant to CPL §30.30 dated April 13, 2015. After defendant was arraigned on the charges, defendant waived his right to a preliminary hearing, and the matter was divested to County Court. Defense counsel contends that the prosecution's principal witness died on June 10, 2015, and suggests that the prosecution never had any intention of pursuing the case, even before the witness died. Defense counsel alleges that the matter lingered in County Court, that there was a discussion that the matter would be dismissed in County Court, and that the "overwhelming majority of this delay was not occasioned by efforts to investigate or prepare their case, but because the prosecution was either lax or more concerned with the manner of disposition than its actual disposition". The defense alleges that despite the filing of a Superseding Information (which defendant alleges is improper) the instant matter has been pending for nearly two years, and arose as a result of an event that allegedly occurred in July 2013 (more than three years ago). Defense counsel avers that, from the date that the charges were filed until the time it was returned to the local court by the County Court, he attempted to contact the People "not less than forty-three times"in attempt to get the prosecution to take action on the case. Defense counsel alleges that the delay occasioned by the People's inaction is prejudicial to his client and detrimental to his ability to mount a defense to the allegations.

A defendant has a right to a constitutional speedy trial pursuant to CPL §30.20. See, US Const. Amend. VI and XIV. The speedy trial guarantee established by the Constitution is intended to ensure fair and humane treatment of an accused person by protecting him or her against prolonged imprisonment while awaiting trial, providing relief from the anxiety and public suspicion that accompanies a criminal accusation which remains untried, and reducing the [*3]possibility that through the loss of witnesses or dulling of memory the means of proving his or her innocence may be lost. People v. Anderson, 66 NY2d 529, 534-535 (1985) [citations omitted]. Protracted delays over a period of years is presumptively prejudicial for purposes of the constitutional right to a speedy trial. See, People v. Santiago, 209 AD2d 885 (3rd Dept. 1994); see also, Doggett v. US, 505 US 647 (1992).

An act or omission by the prosecution that impedes the trial of the matter from going forward constitutes post-readiness delay chargeable to the People. See, People v. Jones, 68 NY2d 717 (1986); People v. McKenna, 76 NY2d 59, 64-65 (1990); People v. Anderson, supra.; People v. Goss, 87 NY2d 792 (1996). A statement by the People that they "decline to prosecute" has been held to be a legal nullity (see, People v. Donnaruma, 41 Misc 3d 195 [2013]); the People's refusal to prosecute is an indication that, at that particular juncture, they are no longer ready, or perhaps willing, to proceed to trial.

Defendant contends that the two times that the People announced readiness, April 13, 2015 and September 28, 2016 were illusory. Defense counsel asserts that there was a lengthy ongoing discussion regarding the People's inability to prove the case even before the June 2015 death of the alleged victim. Defense counsel avers that any delay was solely due to the People and not contributed to by his client.

The Court must consider the duration of the delay against the factors espoused in People v. Taranovich, 37 NY2d 442 (1975). In Taranovich, supra. the Court examined the following factors in determining whether there has been a denial of the defendant's speedy trial rights: (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. Id. at 445. There is no per se period beyond which a criminal prosecution may not be pursued. Id. at 445, citing People v. Prosser, 309 NY 353, 360 (1955). Here although the period of delay is approximately one and one half years from the date of the arrest, defendant points out that the delay is over three years from the date of the alleged event which gave rise to the charges being filed by the defendant, and that said delay was entirely the result of the People's lack of attention to the file or their unwillingness to proceed with the prosecution of the matter. The defendant was never indicted and no application was made in County Court to dismiss the matter, despite the alleged intimations of the People to the contrary. Instead the matter was sent back to the Village Court for disposition. The People failed and refused to give any explanation whatsoever as to why they are refusing to proceed at this juncture, or why there was a delay of the case. The Court has only the incontrovertible argument of defense counsel that the delay is solely attributable to the People and that the People cannot prove their case.

The Court finds that the extent of the delay was extensive, especially when considered along with the People's refusal to respond to defendant's counsel inquiries. Moreover, although the nature of the underlying charge is very serious, and defendant did not suffer from any pre-trial incarceration, it is likely that the defense has been seriously prejudiced and impaired by reason of the delay. People v. Taranovich, 37 NY2d 442 (1975); People v. Santiago, 209 AD2d 885 (3rd Dept. 1994); Doggett v. US, 505 US 647 (1992). Accordingly, defendant's motion to dismiss for a violation of his constitutional right to a speedy trial is granted and the case is hereby dismissed. CPL §§170.30(e), 30.20.

Defendant is entitled to be present at every stage of the proceedings. All motions not granted herein are hereby denied. This opinion shall constitute the Decision and Order of the Court.

Dated: February 23, 2017

Kinderhook, New York

David A. Dellehunt

Kinderhook Village Justice