PEOPLE v. LANFRANCO (2015)

Appeal from a judgment of the County Court of Greene County (Pulver, J.), rendered April 2, 2013, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

In February 2012, a grand jury returned a sealed indictment charging defendant with one count of promoting prison contraband in the first degree. The charges stemmed from a May 2011 incident at Coxsackie Correctional Facility in Greene County (where defendant then was incarcerated), at which time a search of defendant uncovered a piece of glass wrapped in a cardboard and masking tape sheath inside of his underwear. Defendant was arraigned on this charge in March 2012. Various motions followed, including an omnibus motion seeking the production of the underwear that defendant was wearing at the time of the incident, as well as defendant's pro se motion seeking, among other things, to dismiss the indictment upon statutory and constitutional speedy trial grounds. County Court denied both motions and, in February 2014, defendant entered an Alford plea to the reduced charge of attempted promoting prison contraband in the first degree and waived his right to appeal his conviction and sentence. Following an unsuccessful pro se motion to withdraw his plea, defendant was sentenced as a second felony offender to the agreed-upon prison term of 11/212 to 3 years, said sentence to be served consecutively to the sentence he already was serving. This appeal ensued.

Defendant's primary argument upon appeal is that he was denied his constitutional right to a speedy trial by virtue of prearraignment delay.¹ Although defendant's speedy trial claim survives both his guilty plea and his waiver of the right to appeal (see People v. Tuper, 118 AD3d 1144, 1146 [2014] ), we find it to be lacking in merit. In reviewing an alleged constitutional speedy trial violation, we must consider five factors: “(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” (People v. Romeo, 12 NY3d 51, 55 [2009], cert denied 558 U.S. 817 [2009]; see People v. Taranovich, 37 N.Y.2d 442, 445 [1975]; People v. Irvis, 90 AD3d 1302, 1303 [2011], lv denied 19 NY3d 962 [2012] ).

Here, although the People indeed proffered no reason for the 10–month delay, delays of similar lengths have been found not to violate due process (see People v. Weatherspoon, 86 AD3d 792, 792–793 [2011], lv denied 17 NY3d 905 [2011] [nine-month delay]; People v. Striplin, 48 AD3d 878, 879 [2008], lv denied 10 NY3d 871 [2008] [91/212-month delay]; People v. Hernandez, 42 AD3d 657, 662 [2007] [14–month delay]; People v. Irvis, 301 A.D.2d 782, 783–784 [2003], lv denied 99 N.Y.2d 655 [2003] [10–month delay] ), the charge at issue implicated “the safety and security of the detention facility and its employees” (People v. Andrade, 301 A.D.2d 797, 798 [2003] ) and, hence, was serious in nature (see People v. Moustakos, 94 AD3d 1538, 1539 [2012], lv denied 19 NY3d 965 [2012]; People v. Lake, 2 AD3d 892, 893 [2003]; People v. Hernandez, 306 A.D.2d 751, 752 [2003] ), defendant's freedom was not impaired because he already was incarcerated for another crime (see People v. Weatherspoon, 86 AD3d at 793; People v. Perez, 85 AD3d 1538, 1539 [2011]; People v. Hernandez, 42 AD3d at 662; People v. Coggins, 308 A.D.2d 635, 636 [2003] ) and defendant failed to demonstrate any impairment of his defense (see People v. King, 62 AD3d 1162, 1163 [2009]; People v. Hernandez, 306 A.D.2d at 752). Accordingly, we discern no violation of defendant's constitutional right to a speedy trial.

As for the claimed Brady violation, assuming—without deciding—that the underwear in question would constitute exculpatory evidence, the record makes clear that the People were never in possession of this item of clothing; rather, the item was in the possession of the Department of Corrections and Community Supervision—“an administrative agency that was not performing law enforcement functions” here (People v. Smith, 89 AD3d 1148, 1150 [2011], lv denied 19 NY3d 968 [2012]; cf. People v. Kelly, 88 N.Y.2d 248, 253 [1996]; see People v. Bowers, 4 AD3d 558, 559–560 [2004], lv denied 2 NY3d 796 [2004]; People v. Ross, 282 A.D.2d 929, 931 [2001], lv denied 96 N.Y.2d 907 [2001] ). Inasmuch as the agency's asserted failure to secure and preserve the underwear that defendant was wearing at the time of the incident cannot be imputed to the People (cf. People v. Kelly, 88 N.Y.2d at 253; see People v. Figueroa, 53 AD3d 779, 781 [2008], lv denied 11 NY3d 832 [2008]; People v. Ross, 282 A.D.2d at 931), no Brady violation occurred. Defendant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.  The sealed indictment was filed in February 2012 (approximately 81/212 months after the underlying incident) and defendant was arraigned approximately 45 days later, resulting in a prearraignment delay of roughly 10 months.

EGAN JR., J.

LAHTINEN, J.P., McCARTHY and DEVINE, JJ., concur.