People v Zackova
Annotate this CaseDecided on December 4, 2006
Criminal Court of the City of New York, New York County
The People of the State of New York, Plaintiff,
against
Martina Zackova, Defendant.
2006NY037849
Richard M. Weinberg, J.
Defendant is charged with one count of Prostitution (Penal Law § 230.00) in that she allegedly agreed to engage in sexual conduct with an undercover Police Officer in exchange for money. She moves to dismiss the information on due process and interest of justice grounds based on a twenty-one month delay between defendant's alleged commission of the crime on September 13, 2004 and her subsequent arrest and arraignment on June 6, 2006.
The primary safeguard against pre-commencement delay is the statute of limitations. "Such statutes represent legislative assessments of relative interests of the State and the defendant in administering and receiving justice". United States v Marion, 404 US 307, 322 (1971). The crime of Prostitution is a class B misdemeanor. A prosecution for a misdemeanor must be commenced within two years of the commission of the crime. Criminal Procedure Law §30.10 (2) [c]. Since this prosecution was commenced within a two year period, there is no violation of the statute of limitations.
Notwithstanding the relevant statute of limitations, a prolonged and unjustified pre-commencement delay invokes due process concerns. In general, a Federal due process violation requires an unjustifiable delay resulting in actual prejudice to the defendant. United States v Marion, supra, at 324; United States v Lovasco, 431 US 783, 789-790 (1977). Under New York State due process standards, a lengthy pre-commencement delay, without good cause, may entitle a defendant to a dismissal even without a showing of special prejudice. People v Singer, 44 NY2d 241 (1978). However, "a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant". People v Vernace, 96 NY2d 886, 888 (2001), citing People v Singer, supra, at 254. A due process inquiry requires a careful balancing of several factors, including length of delay, reasons for the delay, nature of the underlying charges and prejudice to the [*2]defendant's right to a fair trial. People v Taranovitch, 37 NY2d 442 (1975).
Defendant bases her due process claim solely on an "inexplicable" pre-commencement delay of 21 months. She has not established any prejudice from the delay. In response to defendant's claim of "inexplicable" delay, the People have explained the reason for the delay in that the alleged crime was part of a long term investigation into a money laundering business involving several escort agencies. Defendant allegedly worked for one of those agencies. A premature arrest might have compromised the money laundering investigation. That investigation was concluded on May 19, 2006 with the indictment and arrest of the owners and managers of the escort agencies. Defendant was arrested and arraigned on June 6, 2006. This explanation establishes good cause for the delay.
Upon balancing the relevant factors, the Court concludes that defendant's due process rights have not been violated. While a 21 month pre-accusatory delay is lengthy for a B misdemeanor, it is within the statute of limitations and is justified by the fact that the incident was part of a larger, active investigation which might have been compromised had the defendant been arrested sooner. This justification for the delay, together with the lack of demonstrable prejudice to the defendant, compels the conclusion that defendant's due process rights have not been violated.
Defendant's motion to dismiss on due process grounds is denied.
Defendant's further motion to dismiss in the interest of justice is also denied. Defendant has failed to address the relevant statutory criteria and has failed to articulate any compelling factor or combination of factors which would clearly demonstrate that continuing this prosecution would result in injustice. See Criminal Procedure Law §170.40.
Defendant's motions to suppress identification evidence and statements are granted to the extent of ordering a Wade/Huntley/Dunaway hearing.
Defendant's Sandoval motion is referred to the Trial Court.
The People are directed to respond to defendant's discovery demand and motion for a bill of particulars. The People are reminded of their continuing Brady, Rosario and related responsibilities.
This constitutes the decision and order of the Court.
Dated:___________________________
New York, New YorkJudge of the Criminal Court
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