People v. Regan

• Decision Date: 01 July 2021
• Docket Number: 108167, 111602
• Citation: 196 A.D.3d 735,150 N.Y.S.3d 820
• Parties: The PEOPLE of the State of New York, Respondent, v. Andrew J. REGAN, Appellant.
• Court: New York Supreme Court — Appellate Division

196 A.D.3d 735

150 N.Y.S.3d 820

The PEOPLE of the State of New York, Respondent,

v.Andrew J. REGAN, Appellant.

108167, 111602

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: March 18, 2021

Decided and Entered: July 1, 2021

Richard V. Manning, Parishville, for appellant, and appellant pro se.

Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeals (1) from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered May 11, 2015, upon a verdict convicting defendant of the crime of rape in the first degree, and (2) by permission, from an order of said court (Catena, J.), entered August 14, 2018, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, after a hearing.

In August 2013, defendant was charged by indictment with one count of rape in the first degree based upon allegations that, in August 2009, he engaged in sexual intercourse with the victim without her consent. Defendant was convicted as charged following a jury trial, and County Court (Richards, J.) sentenced him to a prison term of 12 years, followed by 15 years of postrelease supervision. Defendant thereafter moved, pursuant to CPL 440.10, to vacate the judgment of conviction. In August 2018, after conducting a hearing solely on the issue of whether there was a conflict of interest in counsel's representation of defendant, County Court (Catena, J.) denied the motion. Defendant appeals from the judgment of conviction and, by permission, from the August 2018 order.

Defendant contends that he was denied his statutory and constitutional rights to a speedy trial. We turn first to defendant's statutory claim. Pursuant to CPL 30.30(1)(a), the People are required to declare their readiness for a felony trial within six months of the commencement of the criminal action. "Whether the People have satisfied this obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion" ( People v. Cortes, 80 N.Y.2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992] ; accord People v. Rousaw, 151 A.D.3d 1179, 1179, 56 N.Y.S.3d 606 [2017] ).

The record reflects that defendant was arrested on February 13, 2013. Thereafter, in March 2013, an Assistant District Attorney emailed defense counsel asking whether defendant would like to waive his speedy trial rights so that she could convey a plea offer. By letter dated April 17, 2013, defense counsel informed the People that defendant waived his right to a speedy trial, stating that it was his "understanding" that a plea offer would be extended. Ultimately, however, a plea offer was never extended to defendant. Defendant was indicted on August 15, 2013 on the charge of rape in the first degree, and the People declared their trial readiness on August 29, 2013. The People thereafter requested an adjournment on April 22, 2014 to pursue possible new charges and, on May 1, 2014, defendant was indicted on the charge of sexual abuse in the first degree. On June 9, 2014, after the two indictments were joined, the People announced their trial readiness on both charges.¹

Defendant argues that his April 2013 speedy trial waiver was conditional upon the People extending a plea offer and that, absent the extension of an offer, the waiver is invalid. We disagree. Our review of defendant's waiver reveals that, contrary to defendant's contention, it was not contingent upon receiving a plea offer from the People. Rather, defendant's waiver was given in contemplation of plea negotiations. Accordingly, the time chargeable to the People between the period of defendant's arrest and the submission of his speedy trial waiver is 63 days. The 48 days between the People's request for an adjournment on April 22, 2014 and their announcement of trial readiness on all charges on June 9, 2014 is also chargeable to the People (see People v. Niver, 41 A.D.3d 961, 963, 839 N.Y.S.2d 252 [2007], lv denied 9 N.Y.3d 924, 844 N.Y.S.2d 179, 875 N.E.2d 898 [2007] ). Although the charge of sexual abuse in the first degree was dismissed for jurisdictional reasons, the People's trial readiness announcement in June 2014 on all charges was not illusory, contrary to defendant's contention (see id. ; compare People v. Weaver, 34 A.D.3d 1047, 1049, 824 N.Y.S.2d 470 [2006], lv denied 8 N.Y.3d 928, 834 N.Y.S.2d 518, 866 N.E.2d 464 [2007] ). Given that the total time chargeable to the People was 111 days, which does not exceed the six-month period provided for in CPL 30.30(1)(a), defendant's statutory right to a speedy trial was not violated (see generally People v. Waldron, 6 N.Y.3d 463, 467–468, 814 N.Y.S.2d 70, 847 N.E.2d 367 [2006] ).

As for his constitutional claim, defendant asserts that the protracted preindictment delay of four years violated his constitutional speedy trial right. In determining whether a defendant's constitutional right to a speedy trial has been violated by undue preindictment delay, courts must engage in a balancing of five factors, namely, "(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. Decker, 13 N.Y.3d 12, 14, 884 N.Y.S.2d 662, 912 N.E.2d 1041 [2009] ). "The balancing of these factors must be performed carefully in light of the particular facts in each case" ( People v. Romeo, 12 N.Y.3d 51, 55, 876 N.Y.S.2d 666, 904 N.E.2d 802 [2009], cert denied 558 U.S. 817, 130 S.Ct. 63, 175 L.Ed.2d 24 [2009], citing People v. Vernace, 96 N.Y.2d 886, 886, 730 N.Y.S.2d 778, 756 N.E.2d 66 [2001] ).

Here, the preindictment delay of four years was lengthy and the reasons for the delay proffered by the People certainly left something to be desired. However, the People's submissions established that the investigation was ongoing, that they were acting in good faith and that there were valid reasons for portions of the delay. Additionally, the charge of rape in the first degree can only be characterized as serious (see People v. Bradberry, 68 A.D.3d 1688, 1690, 891 N.Y.S.2d 850 [2009], lv denied 14 N.Y.3d 838, 901 N.Y.S.2d 145, 927 N.E.2d 566 [2010] ; People v. Beliard, 67 A.D.3d 427, 427, 888 N.Y.S.2d 814 [2009], lv denied 15 N.Y.3d 918, 913 N.Y.S.2d 645, 939 N.E.2d 811 [2010] ). Furthermore, there was no period of pretrial incarceration and there is no indication that the defense was prejudiced by the delay. In fact, defendant became aware of the accusations against him shortly after the offense occurred. In our view, the seriousness of the offense, the fact that defendant was not incarcerated pretrial and the absence of any demonstrated prejudice outweigh the four-year delay and the shortcomings in the People's reasons therefor (see People v. Decker, 13 N.Y.3d at 15–16, 884 N.Y.S.2d 662, 912 N.E.2d 1041 ; People v. Innab, 182 A.D.3d 142, 145–146, 119 N.Y.S.3d 174 [2020], lv denied 35 N.Y.3d 1027, 126 N.Y.S.3d 39, 149 N.E.3d 877 [2020] ; People v. Mattison, 162 A.D.3d 905, 906–907, 79 N.Y.S.3d 274 [2018], lv denied 32 N.Y.3d 1006, 86 N.Y.S.3d 764, 111 N.E.3d 1120 [2018] ). Accordingly, upon weighing the relevant factors, we find that there was no violation of defendant's constitutional right to a speedy trial resulting from preindictment delay.

Defendant also challenges the verdict as not being supported by legally sufficient evidence or, alternatively, as being against the weight of the evidence. Defendant's legal sufficiency argument is unpreserved because he failed to renew his motion to dismiss following the close of all proof (see People v. Stone, 185 A.D.3d 967, 968, 125 N.Y.S.3d 867 [2020], lv denied 35 N.Y.3d 1097, 131 N.Y.S.3d 285, 155 N.E.3d 778 [2020] ; People v. Henry, 169 A.D.3d 1273, 1273 n., 95 N.Y.S.3d 432 [2019], lv denied 33 N.Y.3d 1070, 105 N.Y.S.3d 16, 129 N.E.3d 336 [2019] ). "Nevertheless, this Court's weight of the evidence review requires us to determine whether the elements of the charged crime were proven beyond a reasonable doubt" ( People v. Johnson, 183 A.D.3d 77, 85, 122 N.Y.S.3d 137 [2020] [citations omitted], lv denied 35 N.Y.3d 993, 125 N.Y.S.3d 631, 149 N.E.3d 392 [2020] ; see People v. Walker, 190 A.D.3d 1102, 1103, 140 N.Y.S.3d 307 [2021], lvs denied ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [May 7, 2021]). Under a weight of the evidence analysis, we must first determine whether, based on all of the credible evidence, a different verdict would not have been unreasonable and, if not, we then "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal quotation marks and citation omitted]; see People v. McMillan, 185 A.D.3d 1208, 1209, 128 N.Y.S.3d 85 [2020], lvs denied 35 N.Y.3d 1112, 1114, 133 N.Y.S.3d 530, 158 N.E.3d 547 [2020] ).

As charged here, "[a] person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person ... [w]ho is incapable of consent by reason of being physically helpless" ( Penal Law § 130.35[2] ). " ‘Physically helpless’ means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act" ( Penal Law § 130.00[7] ). "[A] person who is sleeping is ‘physically helpless’...