People v. Stefanovich

• Decision Date: 01 July 2022
• Docket Number: 331,KA 18-00208
• Citation: 207 A.D.3d 1047,171 N.Y.S.3d 660
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph STEFANOVICH, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

207 A.D.3d 1047

171 N.Y.S.3d 660

The PEOPLE of the State of New York, Respondent,

v.Joseph STEFANOVICH, Defendant-Appellant.

331

KA 18-00208

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

Entered: July 1, 2022

KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.

PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is affirmed.

Memorandum: Defendant was initially convicted following a jury trial of rape in the first degree ( Penal Law § 130.35 [1] ). Although the victim was unable to identify defendant at trial, his DNA linked him to the crime, and he acknowledged during his testimony that he had sexual intercourse with the victim on the date in question but claimed that it was consensual. We reversed the judgment on appeal and ordered a new trial, concluding that defendant was deprived of effective assistance of counsel because his trial attorney repeatedly informed the jury, for no legitimate strategic reason, that defendant was a registered sex offender ( People v. Stefanovich , 136 A.D.3d 1375, 25 N.Y.S.3d 492 [4th Dept. 2016], lv denied 27 N.Y.3d 1139, 39 N.Y.S.3d 121, 61 N.E.3d 520 [2016] ). We rejected defendant's contentions that the evidence was legally insufficient and that the verdict was against the evidence. Upon remittal, defendant waived his right to a jury trial and, following a nonjury trial, he was convicted of the same crime based on essentially the same evidence that was admitted at the first trial.

Defendant contends that Supreme Court erred in denying that part of his omnibus motion seeking to preclude the People from using his testimony from the first trial against him at the retrial. Because the People did not ultimately seek to admit defendant's testimony from the first trial at the retrial, defendant was not prejudiced by the court's ruling, even assuming, arguendo, that it was improper. We note that defendant took the stand and offered testimony consistent with his testimony at the first trial. Under the circumstances, there is no basis for reversal arising from the denial of defendant's preclusion motion.

Considering that the evidence at the retrial was largely the same as the evidence at the first trial, we reject defendant's contention that the evidence is legally insufficient to establish his guilt. Viewing the evidence in the light most favorable to the People, as we must (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that "there is a valid line of reasoning and permissible inferences that could lead a rational person to the conclusion reached by the [factfinder] based on the evidence at trial, i.e., that defendant had sexual intercourse with the victim by forcible compulsion" ( Stefanovich , 136 A.D.3d at 1379, 25 N.Y.S.3d 492 ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

Further, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). There is no dispute that, as the DNA evidence established, defendant had sexual intercourse with the victim; the only question at trial was whether it was by forcible compulsion, as the victim testified, or whether it was consensual, as defendant testified. The court evidently believed the victim and not defendant, and there is no basis in the record for us to disturb the court's credibility determinations, which are entitled to great deference (see People v. Pabon , 126 A.D.3d 1447, 1448, 7 N.Y.S.3d 743 [4th Dept. 2015], affd 28 N.Y.3d 147, 42 N.Y.S.3d 659, 65 N.E.3d 688 [2016] ; People v. McMillian , 158 A.D.3d 1059, 1061, 71 N.Y.S.3d 262 [4th Dept. 2018], lv denied 31 N.Y.3d 1119, 81 N.Y.S.3d 379, 106 N.E.3d 762 [2018] ), especially considering that defendant, when questioned by the police, denied having sex with the victim.

Defendant further contends that the court erred in refusing to dismiss the indictment on the ground that he was deprived of due process by unreasonable preindictment delay (see People v. Vernace , 96 N.Y.2d 886, 887, 730 N.Y.S.2d 778, 756 N.E.2d 66 [2001] ). In determining whether defendant was deprived of due process, we must consider the factors set forth in ( People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975] ), which are: "(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" ( id. at 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 ; see People v. Lewis , 199 A.D.3d 1441, 1441, 154 N.Y.S.3d 603 [4th Dept. 2021], lv denied 38 N.Y.3d 1034, 169 N.Y.S.3d 219, 189 N.E.3d 326 [2022] ).

"[N]o one factor [is] dispositive of a violation, and [there are] no formalistic precepts by which a deprivation of the right can be assessed" ( 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] ). "Generally when there has been a protracted delay, certainly over a period of years, the burden is on the prosecution to establish good cause" ( People v. Singer , 44 N.Y.2d 241, 254, 405 N.Y.S.2d 17, 376 N.E.2d 179 [1978] ). We note, however, that "[t]he People necessarily have wider discretion to delay commencement of prosecution for good faith, legitimate reasons than they do to delay a defendant's trial after charges have been filed, even for legitimate reasons and without acting in bad faith" ( People v. Wiggins , 31 N.Y.3d 1, 13, 72 N.Y.S.3d 1, 95 N.E.3d 303 [2018] [additional emphasis added]), and "it is well established that the extent of the delay, standing alone, is not sufficient to warrant a reversal" ( People v. McFadden , 148 A.D.3d 1769, 1771, 50 N.Y.S.3d 762 [4th Dept. 2017], lv denied 29 N.Y.3d 1093, 63 N.Y.S.3d 9, 85 N.E.3d 104 [2017] ; see People v. Decker , 13 N.Y.3d 12, 15, 884 N.Y.S.2d 662, 912 N.E.2d 1041 [2009] ).

Here, as the People correctly concede, the first Taranovich factor weighs in defendant's favor inasmuch as the period of preindictment delay was extensive, exceeding six years. On the other hand, as defendant correctly concedes, the third and fourth factors militate against dismissal of the indictment inasmuch as rape in the first degree is a serious charge for which there is no statute of limitations, and defendant was not incarcerated prior to indictment.

With respect to the fifth factor, defendant contends that the extensive delay affected his ability to locate potential alibi witnesses, thus impairing his defense. But defendant did not pursue an alibi defense at trial. As noted, defendant testified that he had consensual sexual intercourse with the victim at the time and place she claimed the rape took place. There were thus no potential alibi witnesses to be found. Moreover, considering that by defendant's own account the sexual intercourse took place in the woods with no one else around, there were no witnesses defendant could have found to corroborate his testimony that the encounter was consensual. Under the circumstances, we cannot conceive of what defendant could or would have done differently had he been charged in a more timely manner.

In sum, we conclude that defendant's "conclusory assertions of prejudice are insufficient" to demonstrate that his "defense was impaired by reason of the delay" ( People v. Johnson , 134 A.D.3d 1388, 1390, 22 N.Y.S.3d 265 [4th Dept. 2015], affd 28 N.Y.3d 1048, 43 N.Y.S.3d 245, 65 N.E.3d 1281 [2016] ), and the complete absence of prejudice in this case weighs most heavily against him (see generally People v. Denis , 276 A.D.2d 237, 249, 716 N.Y.S.2d 718 [3d Dept. 2000], lv denied 96 N.Y.2d 782, 725 N.Y.S.2d 646, 749 N.E.2d 215 [2001], reconsideration denied 96 N.Y.2d 861, 730 N.Y.S.2d 35, 754 N.E.2d 1118 [2001] ).

The remaining factor is the second, which concerns the reasons for the delay. There is no indication that the "delay was caused by any bad faith on the part of the People" ( People v. Perez , 85 A.D.3d 1538, 1539, 924 N.Y.S.2d 704 [4th Dept. 2011] ). Instead, the delay was largely caused by the efforts of the People and law enforcement "to acquire substantial corroborating evidence in order to prove defendant's guilt beyond a reasonable doubt" ( People v. Nazario , 85 A.D.3d 577, 577, 926 N.Y.S.2d 433 [1st Dept. 2011], lv denied 17 N.Y.3d 904, 933 N.Y.S.2d 659, 957 N.E.2d 1163 [2011] ). Nevertheless, it is true, as defendant points out, that extensive periods of delay may fairly be attributed to neglect by the People and law enforcement in the investigation. But even assuming, arguendo, that the second factor weighs in defendant's favor, three of the five factors favor the People, and we thus conclude that the court did not err in denying that part of defendant's omnibus motion seeking to dismiss the indictment on due process grounds.

Finally, we reject defendant's contention that the sentence is unduly harsh and severe.

All concur except Nemoyer, J., who dissents and votes to reverse in accordance with the following memorandum:

I dissent because, in my view, defendant was deprived of due process by unreasonable preindictment delay. As the majority explains, that issue requires us to consider the five factors set forth in ( People v. Taranovich , 37 N.Y.2d 442, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975] ), i.e., "(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; ...