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People v. Romeo

February 11, 2009

THE PEOPLE & C., APPELLANT,
v.
ANTHONY ROMEO, RESPONDENT.



The opinion of the court was delivered by: Ciparick, Acting Chief Judge

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

The question raised by this appeal is whether the People's lengthy post-indictment delay occasioned by delaying their prosecution in favor of a Canadian prosecution violated defendant's constitutional right to a speedy trial. Applying the five-factor speedy trial analysis articulated in People v Taranovich (37 NY2d 442 [1975]), we conclude that it did and therefore affirm.

I.

In November 1985, a fatal shooting occurred in the victim's Fire Island home, in Suffolk County. Ballistics evidence taken over a year later indicated that a gun belonging to defendant was the murder weapon. In February 1987, Suffolk County Court ordered defendant to provide a DNA sample to compare with DNA obtained from hair the victim had in his hand when he died. Defendant's attorney scheduled a date for his client to surrender to Suffolk County law enforcement officials and to provide a sample of his DNA for comparative testing.

On the scheduled date, March 5, defendant, armed with a gun, absconded to Canada in his car. On March 8, a Canadian constable pulled the car over for speeding. Defendant pulled his gun, and shot and killed the officer. He then discarded the firearm and reentered the United States, making his way to Boston, where he was arrested at Logan International Airport while attempting to board a plane to Florida. He was arraigned on the Canadian warrant before a federal magistrate and held without bail pending extradition to Canada. Pursuant to court order, Suffolk County law enforcement authorities came to Boston and obtained hair and blood samples from defendant that matched the hair strands found in the victim's hand.

On March 27, a Suffolk County grand jury indicted defendant on two counts of murder in the second degree (Penal Law §§ 125.25 [1], 125.25 [2]) and the People filed a warrant to detain him in the United States. On April 1, while defendant was still in federal custody, he made the first of a series of formal demands to the People for an immediate arraignment and trial on the Suffolk County indictment. He made a similar demand to the United States Department of Justice, asserting his constitutional right to a speedy trial.

On May 15, a Canadian official wrote a letter to the Suffolk County District Attorney's Office stating options available under the existing extradition treaty between the United States and Canada that would enable defendant's return to the United States after a Canadian conviction. The letter was encouraging in tone, but did not offer assurance that a prompt return would be arranged.

On May 29, defendant, still in federal custody, but now in Missouri, filed an order to show cause in Suffolk County Court demanding a writ of habeas corpus to be produced for arraignment in Suffolk County before his extradition to Canada. The People argued that defendant would suffer no unusual delay in facing trial in Suffolk County by being tried in Canada first apparently under the mistaken belief that defendant would immediately be brought back to Suffolk County after his trial in Canada. On June 17, Suffolk County Court denied defendant's application, holding that the People could defer prosecution on the Suffolk County murder charges. The court cautioned the People, however, that any delay caused by allowing the Canadian prosecution to proceed first could result in a violation of defendant's rights to a speedy trial, redress for which defendant would be free to pursue at a later time.

The People still elected to defer prosecution. Defendant was extradited to Canada, where he was tried and convicted of the constable's murder. He received a sentence of imprisonment of twenty-five years to life with parole eligibility in 2011. The People never sought extradition to Suffolk County.

On July 23, 1999, twelve years after having been indicted for the Fire Island murder, defendant moved in Suffolk County Court to dismiss the murder indictment on constitutional and statutory speedy trial grounds. The court denied the application. Six years later, in November 2005, defendant was brought back to Suffolk County following amendments to the Canadian-United States Extradition Treaty that allowed for the "borrowing" of defendant from Canada. Defendant was arraigned on the Suffolk County indictment and, in February 2006, entered a guilty plea to manslaughter in the first degree and was sentenced to a term of imprisonment of seven to twenty-one years to be served concurrently with the Canadian sentence. Defendant appealed, asserting that the nineteen-year post-indictment delay deprived him of his constitutional right to a speedy trial.

The Appellate Division reversed the conviction and dismissed the indictment, holding that the People's delay violated defendant's right to a speedy trial. The court took into consideration only the twelve-year delay in prosecution, from 1987 until 1999, when defendant filed his speedy trial motion. The Appellate Division reasoned that the People's decision to defer their prosecution in favor of the Canadian prosecution and failure to make an extradition request to Canada, even though it was unclear that Canada would have denied the request, caused the extended delay in prosecution. A Judge of this Court granted the People leave to appeal and we now affirm.

II.

A criminal defendant's right to a speedy trial is guaranteed both by the Sixth Amendment to the United States Constitution (US Const, 6th, 14th Amends) and by statute (CPL 30.20; Civil Rights Law, ยง 12). Violation of this right results in dismissal of an indictment (see Strunk v United ...


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