People v. Romeo

• Citation: 904 N.E.2d 802,12 N.Y.3d 51
• Decision Date: 11 February 2009
• Docket Number: No. 7,7
• Parties: The PEOPLE of the State of New York, Appellant, v. Anthony ROMEO, Respondent.
• Court: New York Court of Appeals Court of Appeals

904 N.E.2d 802

12 N.Y.3d 51

The PEOPLE of the State of New York, Appellant, v. Anthony ROMEO, Respondent.

No. 7

Court of Appeals of New York.

February 11, 2009.

Thomas J. Spota, District Attorney, Riverhead (Michael Blakey of counsel), for appellant.

Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C., New York City (Barry A. Bohrer and Kristy Watson Milkov of counsel), for respondent.

OPINION OF THE COURT

Acting Chief Judge CIPARICK.

The question raised by this appeal is whether the People's lengthy postindictment 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 N.Y.2d 442, 373 N.Y.S.2d 79, 335 N.E.2d 303 [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.

Two days before 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], [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 25 years to life with parole eligibility in 2011. The People never sought extradition to Suffolk County.

On July 23, 1999, 12 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 Canada-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 7 to 21 years to be served concurrently with the Canadian sentence. Defendant appealed, asserting that the 19-year postindictment 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 (47 A.D.3d 954, 849 N.Y.S.2d 666 [2008]). The court took into consideration only the 12-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 (10 N.Y.3d 869, 860 N.Y.S.2d 495, 890 N.E.2d 258 [2008]) 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 (U.S. Const 6th, 14th Amends) and by statute (CPL 30.20; Civil Rights Law § 12). Violation of this right results in dismissal of an indictment (see Strunk v. United States, 412 U.S. 434, 439-440, 93 S.Ct. 2260, 37 L.Ed.2d 56 [1973]); People v. Taranovich, 37 N.Y.2d 442, 444, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975]).

The term "speedy trial" must be evaluated in the context of a sensitive balancing of several factors, with no one factor being dispositive of a violation, and with no formalistic precepts by which a deprivation of the right can be assessed (see Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 [1992]; Taranovich, 37 N.Y.2d at 444-445, 373 N.Y.S.2d 79, 335 N.E.2d 303). The five factors to be considered are: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) any extended period of pretrial incarceration; and (5) any impairment of defendant's defense (see Taranovich, 37 N.Y.2d at 445, 373 N.Y.S.2d 79, 335 N.E.2d 303). The balancing of these factors must be performed carefully in light of the particular facts in each case (see People v. Vernace, 96 N.Y.2d 886, 887, 730 N.Y.S.2d 778, 756 N.E.2d 66 [2001]).

The first factor, the extent of the delay, is of critical importance because "all other factors being equal, the greater the delay the more probable it is that the accused will be harmed thereby" (Taranovich, 37 N.Y.2d at 445, 373 N.Y.S.2d 79, 335 N.E.2d 303). There is no specific temporal period by which a delay may be evaluated or considered "presumptively prejudicial" (see Doggett, 505 U.S. at 652, 112 S.Ct. 2686). Where the delay is lengthy, an examination of the other factors is triggered, and the length of delay becomes one factor in that inquiry (see id.).

Here, the delay between the indictment and the filing of the speedy trial motion was an extraordinary period of 12 years (see Doggett, 505 U.S. at 658, 112 S.Ct. 2686 [8½-year delay was "extraordinary" (internal quotation marks omitted)]; Barker v. Wingo, 407 U.S. 514, 533, 92 S.Ct. 2182, 33 L.Ed.2d 101 [1972] [5½-year delay was "extraordinary"]; People v. White, 32 N.Y.2d 393, 398, 345 N.Y.S.2d 513, 298 N.E.2d 659 [1973] [four-year delay violated the defendant's right to a speedy trial]; People v. Winfrey, 20 N.Y.2d 138, 281 N.Y.S.2d 823, 228 N.E.2d 808 [1967] [4½-year delay]). Although not in itself decisive, the 12-year delay requires close scrutiny of the other factors, especially the question of why the delay occurred. It was the People's burden to bring defendant to trial in a timely fashion (see Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 21 L.Ed.2d 607 [1969]). The genesis of this extraordinary delay was the People's decision to defer their prosecution, allowing defendant to be sent abroad for a foreign murder prosecution, and then failing to make an extradition request to Canadian authorities, which, if granted, might have mitigated the length of the delay.

Soon after the filing of this indictment, defendant made repeated demands to be arraigned in Suffolk County before being sent to Canada. Additionally, during a hearing to determine whether defendant could be prosecuted in Canada first, Suffolk County Court cautioned the People that their decision might cause a speedy trial violation. Thus, even prior to their decision to defer prosecution, the People had been placed on notice that their decision might violate defendant's constitutional speedy trial rights, as defendant was already making claims that he was being prejudiced by the delay. In the face of these warnings, the People still allowed defendant to be prosecuted abroad before even arraigning him on the Suffolk County murder indictment.

The People argue that...