Opinion
2015-07-30
The PEOPLE of the State of New York, Respondent, v. Robert CROWELL, Appellant.
Mitch Kessler, Cohoes, for appellant. James R. Farrell, District Attorney, Monticello, for respondent.
Mitch Kessler, Cohoes, for appellant. James R. Farrell, District Attorney, Monticello, for respondent.
Before: PETERS, P.J., McCARTHY, EGAN JR. and ROSE, JJ.
PETERS, P.J.
Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered November 13, 2012, upon a verdict convicting defendant of the crimes of course of sexual conduct against a child in the first degree (two counts) and course of sexual conduct against a child in the second degree (two counts).
On April 17, 2008, the victims (twins born in 1997) disclosed to a school counselor and, subsequently, a State Police investigator that defendant had subjected them to repeated acts of sexual abuse over the course of several years. That same day, defendant was arrested and charged in a felony complaint with rape in the first degree for conduct that allegedly occurred on March 30, 2008. After police discovered an image and several videos of child pornography on defendant's home computer, he was also charged by indictment with 17 counts of possession of a sexual performance by a child. Pursuant to a November 2008 negotiated plea agreement, defendant pleaded guilty to three counts of possession of a sexual performance by a child in full satisfaction of the indictment, the rape charge was dismissed and the People promised not to pursue that charge in the future. Defendant was sentenced to a term of imprisonment.
In March 2012, defendant was indicted on two counts each of course of sexual conduct against a child in the first and second degrees based upon conduct that occurred between June 8, 2003 and June 8, 2004 and, subsequently, between June 8, 2005 and March 1, 2008. He thereafter moved to, among other things, dismiss the indictment on double jeopardy grounds, which motion County Court denied.
Following a jury trial, defendant was convicted as charged and sentenced, as a second felony offender, to an aggregate prison term of 64 years to be followed by 20 years of postrelease supervision. He appeals.
Despite County Court's oral representation that a written decision would be forthcoming addressing that portion of the motion, the record is bereft of any such document, and, according to representations made by counsel at oral argument in response to a query from the Court, no such decision ever issued.
The record does not support defendant's contention that his 2008 guilty plea satisfied all potential charges arising out of his protracted sexual abuse of the victims so as to warrant dismissal of the instant indictment. Rather, the People specified during the plea colloquy that, as part of the agreement, the felony complaint charging defendant with rape in the first degree would be dismissed and the People would be precluded from pursuing that charge in the future. County Court then confirmed that defendant's guilty plea was being taken in satisfaction of all charges with respect to his computer and the rape in the first degree charge. No explicit promises were made with regard to any other uncharged sex crimes being encompassed by defendant's guilty plea, and any unstated intention or off-the-record promise to that effect is not entitled to judicial recognition inasmuch as it would be inconsistent with the terms and conditions of the plea agreement placed on the record ( see Matter of Benjamin S., 55 N.Y.2d 116, 120–121, 447 N.Y.S.2d 905, 432 N.E.2d 777 [1982]; People v. Walker, 26 A.D.3d 797, 798, 810 N.Y.S.2d 270 [2006], lv. denied6 N.Y.3d 854, 816 N.Y.S.2d 760, 849 N.E.2d 983 [2006]; People v. Van Nostrand, 217 A.D.2d 800, 801, 630 N.Y.S.2d 101 [1995], lv. denied87 N.Y.2d 851, 638 N.Y.S.2d 610, 661 N.E.2d 1393 [1995]; compare People v. Oginski, 41 A.D.3d 1097, 1098, 838 N.Y.S.2d 713 [2007] ).
Further, any subjective belief by defendant that the plea would end all criminal exposure stemming from his sexual abuse of the victims is irrelevant ( see People v. Latham, 83 N.Y.2d 233, 239, 609 N.Y.S.2d 141, 631 N.E.2d 83 [1994]; People v. Van Nostrand, 217 A.D.2d at 801, 630 N.Y.S.2d 101).
Nor is the instant prosecution barred by the statutory double jeopardy provisions of CPL 40.20,
which, with certain enumerated exceptions, prohibits the separate prosecution of offenses “based upon the same act or criminal transaction” ( CPL 40.20[2]; seeCPL 40.10 [2] ). Here, the rape charged in the 2008 felony complaint arose out of a March 30, 2008 incident, whereas the four counts of the subject indictment charge a course of sexual conduct occurring from June 8, 2003 to June 8, 2004 (counts 1 and 2) and from June 8, 2005 to March 1, 2008 (counts 3 and 4). The conduct alleged in these two accusatory instruments occurred at different times and involve separate and distinct criminal acts that are not part of the same criminal transaction ( see Matter of Martinucci v. Becker, 50 A.D.3d 1293, 1293–1294, 855 N.Y.S.2d 718 [2008], lv. denied10 N.Y.3d 709, 859 N.Y.S.2d 394, 889 N.E.2d 81 [2008]; People v. Harris, 267 A.D.2d 1008, 1009–1010, 701 N.Y.S.2d 195 [1999]; People v. Van Nostrand, 217 A.D.2d at 801, 630 N.Y.S.2d 101; People v. Moore, 170 A.D.2d 847, 849, 566 N.Y.S.2d 674 [1991], lv. denied77 N.Y.2d 998, 571 N.Y.S.2d 924, 575 N.E.2d 410 [1991]; cf. People v. Fehr, 45 A.D.3d 920, 922, 844 N.Y.S.2d 478 [2007], lv. denied10 N.Y.3d 764, 854 N.Y.S.2d 326, 883 N.E.2d 1261 [2008] ). Likewise, defendant's 2008 possession of numerous pornographic videos of other children engaging in sexual performances is not part of the same criminal transaction as his acts of subjecting the victims to repeated acts of sexual abuse over the course of a more than four-year period commencing in June 2003 ( see People v. DeProspero, 91 A.D.3d 39, 44–45, 932 N.Y.S.2d 789 [2011], affd. 20 N.Y.3d 527, 964 N.Y.S.2d 487, 987 N.E.2d 264 [2013]; People v. Batista, 282 A.D.2d 825, 826, 725 N.Y.S.2d 104 [2001], lv. denied96 N.Y.2d 825, 729 N.Y.S.2d 445, 754 N.E.2d 205 [2001] ).
To the extent that defendant's claim is based upon CPL 40.40, it has not been preserved for our review ( see People v. Tabor, 87 A.D.3d 829, 830, 928 N.Y.S.2d 410 [2011]; People v. Prescott, 104 A.D.2d 610, 611, 479 N.Y.S.2d 383 [1984], affd. 66 N.Y.2d 216, 495 N.Y.S.2d 955, 486 N.E.2d 813 [1985], cert. denied475 U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349 [1986] ).
We next address defendant's claim that counsel was ineffective for failing to move to dismiss the indictment on statutory speedy trial grounds, mindful that “a failure of counsel to assert a meritorious statutory speedy trial claim is, by itself, a sufficiently egregious error to render a defendant's representation ineffective” (People v. St. Louis, 41 A.D.3d 897, 898, 838 N.Y.S.2d 215 [2007]; see People v. Lydecker, 116 A.D.3d 1160, 1161, 983 N.Y.S.2d 675 [2014], lv. denied24 N.Y.3d 962, 996 N.Y.S.2d 222, 20 N.E.3d 1002 [2014]; People v. Garcia, 33 A.D.3d 1050, 1051–1052, 822 N.Y.S.2d 322 [2006], lv. denied9 N.Y.3d 844, 840 N.Y.S.2d 770, 872 N.E.2d 883 [2007] ). Where a defendant is charged with a felony, the People must be ready for trial within six months of the commencement of the criminal action ( seeCPL 30.30[1][a]; People v. Cortes, 80 N.Y.2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992] ). “A criminal action is commenced when the first accusatory instrument is filed, and ‘includes the filing of all further accusatory instruments directly derived from the initial one’ ” (People v. Nelson, 68 A.D.3d 1252, 1253, 890 N.Y.S.2d 189 [2009], quoting CPL 1.20 [16] [b] [emphasis added]; see People v. Lowman, 103 A.D.3d 976, 976–977, 959 N.Y.S.2d 568 [2013] ).
Defendant asserts that the indictment here directly derived from the April 2008 felony complaint charging him with rape in the first degree, such that it should relate back to the filing of the felony complaint for speedy trial purposes. As we have already concluded, however, the felony complaint and subsequently filed indictment charge conduct plainly arising from separate and distinct criminal transactions. Thus, the speedy trial time clock commenced to run upon the filing of the subject indictment, not the 2008 felony complaint ( see People v. Lowman, 103 A.D.3d at 977, 959 N.Y.S.2d 568; People v. Nelson, 68 A.D.3d at 1254, 890 N.Y.S.2d 189; People v. Fehr, 45 A.D.3d at 922, 844 N.Y.S.2d 478; People v. Lashway, 187 A.D.2d 747, 748, 589 N.Y.S.2d 687 [1992], lv. denied81 N.Y.2d 842, 595 N.Y.S.2d 741, 611 N.E.2d 780 [1993] ). As there is no dispute that the People announced their readiness for trial well within six months of the filing of the indictment, defendant was not denied his statutory right to a speedy trial and his counsel was not ineffective for failing to make a motion premised upon that ground ( see People v. Lydecker, 116 A.D.3d at 1162, 983 N.Y.S.2d 675).
Finally, defendant failed to preserve for our review his contention that certain counts of the indictment are multiplicitous ( see People v. Ariosa, 100 A.D.3d 1264, 1267, 955 N.Y.S.2d 244 [2012], lv. denied21 N.Y.3d 1013, 971 N.Y.S.2d 495, 994 N.E.2d 391 [2013]; People v. Thompson, 34 A.D.3d 931, 932, 823 N.Y.S.2d 602 [2006], lv. denied7 N.Y.3d 929, 827 N.Y.S.2d 698, 860 N.E.2d 1000 [2006] ).
ORDERED that the judgment is affirmed.