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

The PEOPLE of the State of New York, Respondent, v. Anthony N. MANGAN, Appellant.

Decided: February 25, 1999

Before:  CARDONA, P.J., MIKOLL, MERCURE, CREW III and YESAWICH JR., JJ. Peter B. Meadow, Woodbourne, for appellant. Gerald F. Mollen, District Attorney (Michael A. Korchak of counsel), Binghamton, for respondent.

Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered October 7, 1997, upon a verdict convicting defendant of the crime of arson in the third degree.

On March 16, 1995 at approximately 10:11 P.M., a fire was reported at a trailer home owned by defendant and his wife in the Town of Nanticoke, Broome County.   Defendant was the only person home at the time.   Following an investigation into the cause of the fire, defendant was indicted on November 26, 1996 for arson in the third degree.   In June 1997, he made an omnibus motion to, inter alia, dismiss the indictment on the ground of delay between his alleged commission of the crime and the indictment.   The motion was denied and, after a jury trial, defendant was found guilty of the crime charged.   County Court sentenced him to a prison term of 2 1/212 to 7 1/212 years and ordered restitution in the amount of $8,708 to the company insuring the trailer and $8,708 to a lienholder.   Defendant made an unsuccessful motion to set aside the verdict resulting in this appeal.

 Initially, we reject defendant's contention that the delay in the prosecution of the crime violated his right to due process under the Federal and State Constitutions.   It has been held that an unreasonable delay in prosecuting a defendant constitutes a denial of due process and may require dismissal of the indictment (see, People v. Singer, 44 N.Y.2d 241, 253, 405 N.Y.S.2d 17, 376 N.E.2d 179;  People v. Allende, 206 A.D.2d 640, 642, 614 N.Y.S.2d 612, appeal dismissed 84 N.Y.2d 921, 621 N.Y.S.2d 510, 645 N.E.2d 1209).   The People bear the burden of demonstrating good cause where the delay is protracted (see, People v. Lesiuk, 81 N.Y.2d 485, 490, 600 N.Y.S.2d 931, 617 N.E.2d 1047;  People v. Singer, supra, at 254, 405 N.Y.S.2d 17, 376 N.E.2d 179;  People v. Gallup, 224 A.D.2d 838, 839, 638 N.Y.S.2d 222).   As we noted in People v. Brown, 243 A.D.2d 750, 663 N.Y.S.2d 670, when considering preindictment delay the court must evaluate the defendant's due process claim by balancing five factors.   They include “the extent of the delay, the reason for the delay, the nature of the underlying charge, whether there has been an extended period of incarceration and whether there is any indication that the defense has been impaired by reason of the delay” (id., at 751, 663 N.Y.S.2d 670).

 In the case at hand, defendant asserts that the 20-month delay between his alleged commission of the crime and the indictment was unreasonable.   The record discloses that an investigation into the cause of the fire was commenced immediately after it occurred on March 16, 1995.   While investigators initially determined that the fire was not started accidentally, they did not have any evidence directly implicating defendant.   Rather, such evidence did not come to light until police had discussions with Mark Weeks, a party with whom defendant and his wife resided after the fire until December 1995.   Police approached Weeks in February 1996 at which time he indicated that he had information about the fire but did not reveal the details.   It was not until June 1996 that Weeks finally gave a written statement to the police indicating that defendant had confessed to starting the fire.   In addition, the results of tests done on a kerosene heater located near the point of origin of the fire were not complete until June 27, 1996.

In our view, the delay in prosecuting defendant was amply justified by the extensive ongoing investigation and police efforts at gathering evidence necessary to directly link him to the crime (see, e.g., People v. Martinez, 187 A.D.2d 993, 591 N.Y.S.2d 368, lv. denied 81 N.Y.2d 889, 597 N.Y.S.2d 950, 613 N.E.2d 982;  People v. Corrigan, 139 A.D.2d 918, 527 N.Y.S.2d 907, lv. denied 72 N.Y.2d 917, 532 N.Y.S.2d 851, 529 N.E.2d 181).   Notably, defendant was at liberty during the entire period of the delay (see, People v. Corrigan, supra, at 919, 527 N.Y.S.2d 907).   While defendant claims that he has been prejudiced due to the unavailability of two witnesses who saw him immediately after the fire, one who died and the other who relocated, we find the argument unpersuasive.   A neighbor who witnessed defendant exit his trailer the evening of the fire testified to his demeanor.   Furthermore, defendant has failed to demonstrate the manner in which the absence of the two witnesses in question impaired his defense.   Therefore, we find no violation of defendant's due process rights.

 Defendant further contends that County Court abused its discretion in ruling that the prosecution could introduce evidence of certain prior crimes to impeach his credibility in the event he chose to testify.   We find this argument to be without merit.   Under People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413, County Court is vested with discretion to admit evidence of prior convictions for the purpose of impeachment upon balancing the probative worth of the evidence on the issue of the defendant's credibility against the risk of unfair prejudice to the defendant, including whether it would discourage him or her from testifying (see, People v. Williams, 56 N.Y.2d 236, 238-239, 451 N.Y.S.2d 690, 436 N.E.2d 1292).   It has been stated that “there are no per se rules requiring preclusion because of the age, nature and number of a defendant's prior crimes” (People v. Walker, 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472;  see, People v. Miller, 217 A.D.2d 810, 811, 630 N.Y.S.2d 99, lv. denied 86 N.Y.2d 798, 632 N.Y.S.2d 511, 656 N.E.2d 610).   Rather, “[e]vidence of prior specific criminal, vicious or immoral conduct should be admitted if the nature of such conduct or the circumstances in which it occurred bear logically and reasonably on the issue of credibility” (People v. Sandoval, supra, at 376, 357 N.Y.S.2d 849, 314 N.E.2d 413).

 Although defendant has a lengthy criminal record, County Court ruled that only four criminal convictions would be admissible for impeachment purposes if defendant testified.   They included a 1974 conviction of burglary in the third degree, a 1982 conviction of criminal possession of a forged instrument, a 1986 conviction of welfare fraud and a 1993 conviction of resisting arrest.   Inasmuch as such crimes are reflective of defendant's moral character and honesty, they are relevant to his credibility.   We do not find the probative value of this evidence outweighed by the prejudice to defendant.   Therefore, we conclude that County Court's Sandoval ruling was not an abuse of discretion.

 Defendant also contends that his due process right to be present at all material stages of his trial was violated when County Court held a conference in his absence and thereafter permitted the People to reopen their case to call a rebuttal witness.   Preliminarily, the People argue that this issue was not preserved for appellate review.   We disagree.   Because defendant had a fundamental right to be present at all material stages of the trial, a timely objection to his exclusion from the conference was not required (see, CPL 260.20;  People v. Antommarchi, 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 604 N.E.2d 95;  People v. Dokes, 79 N.Y.2d 656, 662, 584 N.Y.S.2d 761, 595 N.E.2d 836).   Turning to the merits of the argument, we find it unpersuasive.   Since the conference involved only a question of trial procedure, defendant had nothing of value to contribute and his absence had no affect on his ability to defend against the charges (see, People v. Williams, 85 N.Y.2d 945, 946, 626 N.Y.S.2d 1002, 650 N.E.2d 849, lv. denied 87 N.Y.2d 920, 641 N.Y.S.2d 602, 664 N.E.2d 513;  People v. Sloan, 79 N.Y.2d 386, 392, 583 N.Y.S.2d 176, 592 N.E.2d 784;  People v. Velasco, 77 N.Y.2d 469, 472-473, 568 N.Y.S.2d 721, 570 N.E.2d 1070).   Thus, there was no right to be personally present.

 We do find merit, however, to defendant's assertion that County Court erred in failing to conduct a hearing pursuant to Penal Law § 60.27 prior to ordering him to pay restitution.   That statutory mandate provides that in ordering restitution “the court must make a finding as to the dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim caused by the offense” (Penal Law § 60.27[2] ).   It further states that “[i]f the record does not contain sufficient evidence to support such finding or upon request of the defendant, the court must conduct a hearing” (Penal Law § 60.27 [2] ).   While defendant concedes that he did not request a hearing, we do not find that the record contains sufficient evidence for County Court to have ordered restitution as it did.

It was established through the testimony of an insurance company representative that the limits of the insurance policy maintained on the mobile home were $17,000 for the structure, $137 for improvements and $8,500 for the contents.   The representative stated that no money was actually paid to defendant because his claim was denied.   She further stated that the lienholder, who was the loss payee for damage to the structure, had a financial interest of $14,856.33.   The lienholder testified that the insurance company paid him one half of the claim or “around $8,500”.   In our view, the foregoing testimony fails to establish the precise amount paid by the insurance company to the lienholder for the loss to the structure or the balance of the lienholder's financial interest in the structure.   Therefore, we conclude that the matter must be remitted for a hearing on restitution (see, People v. Asch, 155 A.D.2d 735, 736, 547 N.Y.S.2d 447, lv. denied 76 N.Y.2d 784, 559 N.Y.S.2d 989, 559 N.E.2d 683).

 Finally, we find no merit to defendant's contention that the sentence imposed was harsh and excessive.   We note that the sentence was less than that permitted for a class C felony offense (see, Penal Law § 70.00[2] [c];  [3][b];  § 150.10).   We cannot say that the court abused its discretion in light of the nature of the crime and defendant's extensive prior criminal record.   Nor do we perceive any extraordinary circumstances warranting a reduction of the sentence (see, CPL 470.15[6][b] ).

ORDERED that the judgment is modified, on the law, by reversing so much thereof as ordered defendant to pay restitution to Allstate Insurance Company and Anthony J. De Paolo in the amount of $8,708, respectively;  matter remitted to the County Court of Broome County for a hearing on restitution;  and, as so modified, affirmed.



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