PEOPLE v. CUPPUCCINO (2021)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered March 9, 2018, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

On August 31, 2017, defendant, an incarcerated individual, was charged by indictment with promoting prison contraband in the first degree.  The charge stemmed from an incident on December 2, 2016 when defendant set off a metal detector and was found to be in possession of a razor blade-type weapon.  Defendant pleaded guilty to a reduced charge of attempted promoting prison contraband in the first degree and was sentenced, as a second felony offender, to a prison term of 11/212 to 3 years to run consecutively to the term he was already serving.  Defendant appeals.¹

Defendant's contention that his constitutional right to a speedy trial was denied by the nine-month delay between the charged crime and the indictment is unpreserved for review as he failed to raise it before County Court prior to his plea (see People v. Grays, 179 A.D.3d 1149, 1150, 114 N.Y.S.3d 531 [2020];  People v. Shufelt, 161 A.D.3d 1451, 1451–1452, 77 N.Y.S.3d 760 [2018], lv denied 32 N.Y.3d 1008, 86 N.Y.S.3d 766, 111 N.E.3d 1122 [2018];  People v. Evans, 156 A.D.3d 1246, 1247, 68 N.Y.S.3d 564 [2017];  People v. Gerald, 153 A.D.3d 1029, 1030, 61 N.Y.S.3d 173 [2017]).  We address this issue, however, in the context of defendant's related claim that counsel's failure to move to dismiss the indictment due to preindictment delay amounted to ineffective assistance of counsel.

“In assessing whether a defendant's constitutional right to a speedy trial has been violated by alleged preindictment delay, courts must consider the extent of the delay, the reason for the delay, the nature of the charges against the defendant, whether there has been an extended period of pretrial incarceration and whether the defense has been impaired by reason of the delay” (People v. Acevedo, 179 A.D.3d 1397, 1399–1400, 117 N.Y.S.3d 767 [2020] [internal quotation marks and citations omitted];  see People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975];  People v. Heimroth, 181 A.D.3d 967, 969–970, 119 N.Y.S.3d 627 [2020], lv denied 35 N.Y.3d 1027, 126 N.Y.S.3d 37, 149 N.E.3d 875 [2020]).  Although the People have not provided justification for the nine-month delay, delays of similar length have been found not to violate a defendant's right to due process (see People v. McCollough, 198 A.D.3d 1023, 1023-24, 152 N.Y.S.3d 643, 644 [2021] [one-year delay];  People v. Morris, 176 A.D.3d 1502, 1503, 111 N.Y.S.3d 469 [2019], lvs denied 34 N.Y.3d 1131, 1132, 118 N.Y.S.3d 520, 554, 555, 141 N.E.3d 476, 510, 511 [2020] [11–month delay];  People v. Williams, 163 A.D.3d 1283, 1285, 82 N.Y.S.3d 646 [2018], lv denied 32 N.Y.3d 1069, 89 N.Y.S.3d 124, 113 N.E.3d 958 [2018] [nine-month delay];  People v. Lanfranco, 124 A.D.3d 1144, 1145, 1 N.Y.S.3d 576 [2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] [10–month delay]).  Further, defendant's liberty interest was not impacted, inasmuch as he was already incarcerated for another crime (see People v. Young, 190 A.D.3d 1087, 1094, 139 N.Y.S.3d 718 [2021], lvs denied 36 N.Y.3d 1100, 1102, 144 N.Y.S.3d 138, 153, 154, 167 N.E.3d 1273, 1288, 1289 [2021];  People v. Lanfranco, 124 A.D.3d at 1145, 1 N.Y.S.3d 576;  People v. Hernandez, 42 A.D.3d 657, 662, 839 N.Y.S.2d 592 [2007]).  Finally, contrary to defendant's contention in his pro se supplemental brief, he has not demonstrated that his defense was impaired by the delay (see People Young, 190 A.D.3d at 1094, 139 N.Y.S.3d 718;  People v. Acevedo, 179 A.D.3d at 1401, 117 N.Y.S.3d 767).  As ineffective assistance does not result from counsel failing to make a motion “that has little or no chance of success” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] [internal quotation marks and citation omitted];  see People v. Young, 190 A.D.3d at 1094, 139 N.Y.S.3d 718), defendant's claim is without merit.

Defendant also contends that County Court erred in denying his request to issue pretrial subpoenas for the disciplinary records of the two correction officers who were listed as trial witnesses by the People.  Civil Rights Law § 50–a, in effect at the time of the 2018 subpoena request, authorized the disclosure of such personnel records upon “a clear showing of facts sufficient to warrant the judge to request records for review.” ²  The party making the request had to demonstrate “some good faith, factual predicate” for disclosure (People v. Thomas, 155 A.D.3d 1120, 1122, 64 N.Y.S.3d 702 [2017], lv denied 31 N.Y.3d 1018, 78 N.Y.S.3d 288, 102 N.E.3d 1069 [2018];  see People v. Darrell, 145 A.D.3d 1316, 1319, 45 N.Y.S.3d 223 [2016], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017]).  We agree with County Court that defendant's general claim that he had information that the two correction officers had disciplinary actions regarding the treatment of incarcerated individuals brought against them in the past failed to establish a good faith, factual basis in support of his request for the subpoenas and, therefore, we find no abuse of discretion in denying the request (see People v. Darrell, 145 A.D.3d at 1319, 45 N.Y.S.3d 223;  People v. Harris, 121 A.D.2d 788, 789, 504 N.Y.S.2d 552 [1986], lv denied 68 N.Y.2d 770, 506 N.Y.S.2d 1054, 498 N.E.2d 156 [1986]).  Defendant's remaining claims have been considered and found to be without merit.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   When this matter was previously before us, we rejected counsel's Anders brief, withheld decision and assigned new counsel to represent defendant on the appeal (182 A.D.3d 805, 120 N.Y.S.3d 855 [2020]).

2.   Civil Rights Law § 50–a has since been repealed, effective June 12, 2020 (see L 2020, ch 96, § 1).

Clark, J.

Garry, P.J., Lynch, Reynolds Fitzgerald and Colangelo, JJ., concur.