The opinion of the court was delivered by: McCarthy, J.
Calendar Date: November 21, 2011
Before: Peters, J.P., Rose, McCarthy, Garry and Egan Jr., JJ.
Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered March 13, 2009, convicting defendant upon his plea of guilty of the crimes of burglary in the first degree and assault in the second degree.
In June 2006, defendant and several friends broke down the door to an apartment and attacked the residents, injuring three individuals. As a result, defendant was indicted on two counts of burglary in the first degree and two counts of assault in the second degree. In June 2007, defendant pleaded guilty to a reduced count of burglary in the second degree in satisfaction of the indictment, in exchange for a sentence of 31/2 years in prison followed by 21/2 years of postrelease supervision.
In November 2007, County Court (Daley, J.), requested more information on defendant's background, indicating that the court was considering a more lenient sentence or dismissal of the indictment in the interest of justice. In December 2007, the court requested the grand jury minutes, but the People refused to turn them over because no motion for their inspection had been made and a plea had been entered. The court indicated its willingness to permit defendant to withdraw his plea and move for an inspection of the grand jury minutes, so as to allow the court to better consider dismissal in the interest of justice. In January 2008, defendant moved to vacate his plea. The court informed defendant of the possibility that he could incur a longer sentence if convicted after trial, which defendant acknowledged. The court granted defendant's motion and vacated the plea.
In June 2008, defendant engaged in an altercation that left the victim in a coma for eight days. Defendant was charged by indictment with assault in the second degree and resisting arrest. In September 2008, a new judge was assigned to defendant's matters. County Court (Smith, J.) denied defendant's motion to dismiss the first indictment either in the interest of justice or on speedy trial grounds. In December 2008, defendant pleaded guilty to burglary in the first degree in satisfaction of the first indictment and assault in the second degree in satisfaction of the second indictment. In exchange, he was sentenced concurrently, in accordance with his plea agreement, to five years in prison followed by five years of postrelease supervision on the burglary count and two years in prison followed by three years of postrelease supervision on the assault count. Defendant appeals.
Defendant was not denied his constitutional right to a speedy trial. While some of the factors laid out by the Court of Appeals weigh in favor of defendant (see People v Romeo, 12 NY3d 51, 55 , cert denied ___ US ___, 130 S Ct 63 ; People v Taranovich, 37 NY2d 442, 445 ), when considered in aggregate, the factors support a finding of no violation. The 21/2 -year delay between his first indictment and the filing of his motion to dismiss was lengthy, such that it would be considered excessive absent justification (see People v Romeo, 12 NY3d at 56; People v Morris, 25 AD3d 915, 916 , lv denied 6 NY3d 815 ; People v Panarella, 50 AD2d 304, 307 ). The reasons for the delay justify that lengthy period. When defendant accepted the original plea offer, the case could not proceed to trial. Defendant sought time to confer with a second attorney, then failed to appear, requiring a continuation. After he withdrew his plea, the People moved to recuse the trial judge. Defendant was arrested on the assault charge, moved for appointment of new counsel, then moved to dismiss the indictment. County Court needed time to decide the motions. Much of the delay was caused by or attributable to defendant, and other delay occurred because the original assigned judge needed to travel from a distant county; very little of the delay was attributable to the People. The nature of the underlying charges was serious, i.e., more than one violent felony that resulted in extensive physical injuries to multiple victims. Defendant was only incarcerated after his arrest on the assault charge in June 2008, two years after his indictment. Finally, defendant made only generic claims of prejudice to his defense, without including any specific information. Considering all of the Taranovich factors, defendant was not deprived of his constitutional right to a speedy trial (see People v Drake, 38 AD3d 1009, 1010-1011 , lv denied 8 NY3d 984 ).
Defendant was not deprived of the benefit of his original plea bargain. County Court (Daley, J.) offered to allow defendant to withdraw his plea, presumably because the court was upset with the People's refusal to turn over the grand jury minutes and it could obtain the minutes if the plea was vacated. The court was seriously considering dismissal of the indictment in the interest of justice (see CPL 210.20  [i]; 210.40), raising a legitimate reason for defendant to seek vacatur of his plea. The court did inform defendant that he could face a greater sentence after further proceedings if the plea was withdrawn. Defendant, having been so informed, took a gamble at possibly having the indictment dismissed. Defendant regretted that decision after a new judge was assigned -- one apparently less inclined to be lenient to defendant -- and defendant was arrested on new charges, making it unlikely that the first indictment would be dismissed or that he would receive a lesser sentence. Although the court may have encouraged defendant to withdraw his plea, defendant did so knowingly. Therefore, defendant was not deprived of the benefit of his original plea bargain; he chose to forgo that plea in hopes of obtaining a better result, which -- unfortunately for him -- did not materialize.
Peters, J.P., Rose, Garry and Egan Jr., JJ., concur.
ORDERED that the judgment is affirmed.
Robert D. Mayberger Clerk of ...