People v. Scaringe

Citation27 N.Y.S.3d 712,137 A.D.3d 1409
Parties The PEOPLE of the State of New York, Respondent, v. Michael J. SCARINGE, Appellant.
Decision Date17 March 2016
CourtNew York Supreme Court Appellate Division

Barry J. Jones, Hudson Falls, for appellant.

Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.

Before: McCARTHY, J.P., GARRY, ROSE and DEVINE, JJ.

GARRY

, J.

Appeal from a judgment of the County Court of Franklin County (Rogers, J.), rendered August 24, 2012, upon a verdict convicting defendant of the crimes of rape in the second degree, sexual abuse in the second degree and endangering the welfare of a child.

In the fall of 2009, defendant, who was then 61 years old, was hired as the director of the Saranac Lake Youth Center, a community agency that provided an after-school gathering place for children and teenagers. Shortly thereafter, he befriended a 13–year–old Youth Center client (hereinafter the victim) by, among other things, buying her gifts and exchanging text messages with her. He also provided various forms of assistance to her family. In December 2009, defendant brought the victim to his home in the Town of Harrietstown, Franklin County, directed her into his bedroom, removed her clothes, placed and guided her hand on his penis, and inserted his penis into her vagina. Defendant was indicted on charges of rape in the second degree, sexual abuse in the second degree (two counts) and endangering the welfare of a child. One of the charges of sexual abuse in the second degree was dismissed before trial. Following a mistrial and a second jury trial, defendant was convicted of the remaining charges and sentenced to an aggregate prison term of seven years, followed by seven years of postrelease supervision. Defendant appeals.

County Court did not err in denying defendant's motion to dismiss the indictment on constitutional and statutory speedy trial grounds. Whether the People have complied with their statutory obligation to declare their readiness for a felony trial within six months of the commencement of a criminal action is "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. Pope, 96 A.D.3d 1231, 1232, 947 N.Y.S.2d 634 [2012], lv. denied 20 N.Y.3d 1064, 962 N.Y.S.2d 615, 985 N.E.2d 925 [2013] ; see CPL 30.30[1][a] ). Here, the six-month period, comprising 181 days, began to run when the felony complaint was filed on January 1, 2010 (see People v. Cortes, 80 N.Y.2d at 207 n. 3, 590 N.Y.S.2d 9, 604 N.E.2d 71 ; People v. Lowman, 103 A.D.3d 976, 976–977, 959 N.Y.S.2d 568 [2013] ). The People declared readiness at defendant's arraignment on June 23, 2010.1 That date fell less than 181 days after the felony complaint was filed. We further agree with the People that they are entitled to exclude an additional prereadiness period resulting from an adjournment of the grand jury proceeding. "[T]he People bear the burden of establishing their entitlement to exclude any prereadiness delays from the calculation under a CPL 30.30 motion and, as such, must ensure that the record is sufficiently clear as to who is chargeable for a delay" (People v. Smith, 110 A.D.3d 1141, 1142, 973 N.Y.S.2d 422 [2013] [internal quotation marks and citations omitted]; see People v. Seamans, 85 A.D.3d 1398, 1399, 925 N.Y.S.2d 266 [2011] ). Here, the People submitted correspondence showing that defense counsel and the District Attorney agreed to a 35–day adjournment of the grand jury proceeding. This time period is excludable, as defense counsel's consent was "clearly expressed" (People v. Smith, 110 A.D.3d at 1143, 973 N.Y.S.2d 422 [internal quotation marks and citation omitted] ); however, no such consent was shown as to any other adjournments (see People v. Smith, 82 N.Y.2d 676, 678, 601 N.Y.S.2d 466, 619 N.E.2d 403 [1993] ; People v. Battaglia, 187 A.D.2d 808, 810, 589 N.Y.S.2d 694 [1992] ).

The total period of prereadiness delay is thus well under 181 days, and we reject defendant's contention that the People nevertheless failed to comply with their statutory obligation because of subsequent postreadiness delay. The People moved for reconsideration of County Court's prior order dismissing one of the charges of sexual abuse in the second degree and for permission to amend the indictment or, alternatively, for leave to re-present the charges to another grand jury. The court subsequently issued an order that denied reconsideration but granted leave to the People to re-present the charges; nine days later, the People advised the court that they would not do so. Contrary to defendant's contention, the fact that the People sought the alternative relief of re-presentment neither renders their motion equivalent to a request for adjournment nor requires these time periods to be charged to the People. Delay resulting from a court's consideration of pretrial motions is not chargeable to the People (see CPL 30.30[4][a]

; People v. Moorhead, 61 N.Y.2d 851, 852, 473 N.Y.S.2d 967, 462 N.E.2d 144 [1984] ), and a decision by the People to seek a superseding indictment—or here, their consideration of whether to do so—does not render illusory a previous statement of readiness, which "is presumed to be ... accurate and truthful" (People v. Miller, 113 A.D.3d 885, 887, 978 N.Y.S.2d 412 [2014] [internal quotation marks and citation omitted]; see People v. Galloway, 93 A.D.3d 1069, 1070, 940 N.Y.S.2d 699 [2012], lv. denied 19 N.Y.3d 996, 951 N.Y.S.2d 472, 975 N.E.2d 918 [2012] ). Accordingly, the People complied with their statutory speedy trial obligations. Finally, we find no constitutional violation. The extent of the delay was not "extraordinary" (People v. Romeo, 12 N.Y.3d 51, 56, 876 N.Y.S.2d 666, 904 N.E.2d 802 [2009] [internal quotation marks and citations omitted], cert. denied 558 U.S. 817, 130 S.Ct. 63, 175 L.Ed.2d 24 [2009] ). It resulted primarily from pretrial motions filed by both parties, the underlying charges were serious, defendant was not incarcerated before trial, and he showed no impairment or prejudice to his defense (see People v. Taranovich, 37 N.Y.2d 442, 446–447, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975] ; People v. Pitt, 43 A.D.3d 1248, 1248–1249, 843 N.Y.S.2d 192 [2007], lv. denied 9 N.Y.3d 1008, 850 N.Y.S.2d 396, 880 N.E.2d 882 [2007] ).

Contrary to defendant's claim, County Court properly refused to suppress statements that defendant made to police investigators before he invoked his right to counsel. It is the People's burden to prove that a defendant's statements to police were voluntary and were not the product of unduly coercive or deceptive police conduct, an analysis based upon the totality of the circumstances (see People v. Guilford, 21 N.Y.3d 205, 208, 969 N.Y.S.2d 430, 991 N.E.2d 204 [2013]

; People v. Neal, 133 A.D.3d 920, 922, 20 N.Y.S.3d 193 [2015], lvs. denied 26 N.Y.3d 1107, 1110, 26 N.Y.S.3d 766, 769, 47 N.E.3d 96, 99 [2016] ). Here, police investigators asked defendant to speak with them about an unspecified investigation. In response to this request, defendant transported himself to the police station, and the investigators immediately administered Miranda warnings to him. Defendant confirmed that he understood his rights and was "absolutely" willing to speak with police. The investigators did not immediately disclose the true purpose of the ensuing two-hour interview, but instead discussed various other topics before asking defendant directly about the victim and her accusations. Deceptive police conduct may be unduly coercive, but only when it is so "extreme" that it overbears a defendant's individual will (People v. Thomas, 22 N.Y.3d 629, 642, 985 N.Y.S.2d 193, 8 N.E.3d 308 [2014] ). Here, nothing in the investigators' mildly misleading interviewing technique was so deceitful as to undermine the voluntariness of defendant's choice whether to speak with them (see People v. Moore, 132 A.D.3d 496, 496–497, 17 N.Y.S.3d 426 [2015] ; People v. Dallas, 119 A.D.3d 1362, 1363, 989 N.Y.S.2d 206 [2014], lv. denied24 N.Y.3d 1083, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014]

; People v. Lloyd, 118 A.D.3d 1117, 1119, 987 N.Y.S.2d 672 [2014], lv. denied 25 N.Y.3d 951, 7 N.Y.S.3d 280, 30 N.E.3d 171 [2015] ). Defendant requested an attorney soon after the investigators began to focus the questioning on the victim's accusations, belying his contention that the earlier "social conversation" had so diluted his awareness of his rights that the warnings should have been re-administered (People v. Cox, 21 A.D.3d 1361, 1363, 802 N.Y.S.2d 813 [2005] [internal quotation marks omitted], lv. denied 6 N.Y.3d 753, 810 N.Y.S.2d 421, 843 N.E.2d 1161 [2005] ; see People v. Sanders, 295 A.D.2d 639, 639, 743 N.Y.S.2d 618 [2002], lv. denied 98 N.Y.2d 771, 752 N.Y.S.2d 12, 781 N.E.2d 924 [2002] ).

Defendant's convictions were not against the weight of the evidence. The victim testified that she and defendant talked and spent time together and that he often gave her rides to her home, school athletic events and cheerleading practice. During these rides, defendant would sometimes try to kiss the victim or "massage" her arm. She said that she would "try to block it out" when he touched her, that it "wasn't comfortable feeling all the time [and] it was kind of creepy in some ways." She stated, however, that she thought of defendant as a friend and believed that she loved him "[b]ecause he would always buy me, like, gifts and make me feel like really close ... like he cared for me but not in a daughter way but like friends."

Defendant bought several gifts for the victim, such as a costume for a Halloween dance and Christmas...

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