[*1]
People v Miller
2009 NY Slip Op 52361(U) [25 Misc 3d 1231(A)]
Decided on November 23, 2009
County Court, Nassau County
Peck, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on November 23, 2009
County Court, Nassau County


People of the State of New York,

against

Donald Miller, Defendant.




859N-09



KATHLEEN RICE

District Attorney

Nassau County

Mineola, New York

By Christine M. Geier, Esq.

Steven R. Barnwell, Esq.

Attorney for the Defendant

Suite 205

131 Mineola Blvd.

Mineola, NY 11501

George R. Peck, J.



The defendant's motion for an order dismissing the within indictment in keeping with People v. Singer 44 NY2d 241 (1978) is hereby granted.

The defendant was charged by way of indictment with one count of Burglary in the 3rd degree (PL §140.20). The genesis of this charge related to the burglary of a delicatessen in Garden City, New York. At the crime scene, certain tools were found at the point of entry; these tools were never claimed by the owner of the store nor his employees and the record is devoid of how they related to the burglary at issue. The date of this incident was February 23, 2007.

To fully understand the reasoning behind the Court's analysis, it is important to understand that the defendant plead guilty under two separate non related indictments (No.935N-07 & 1346N-07) to various felonies, and the defendant received an agreed upon sentence of an indeterminate term of imprisonment of 3 ½ to 7 years, to be served concurrently to each other. This sentence occurred on October 5, 2007, and was in full satisfaction of the crimes charged. When this plea was taken it was well understood by all parties that the defendant was a suspect in numerous uncharged commercial burglaries in Nassau County, New York. Also, this Court stated that the possibility of a future cooperation agreement existed, and when the Court gave its commitment [*2]it stated that if the Nassau County District Attorney's Office recommends a lesser sentence, it would follow that recommendation. The purpose of the cooperation agreement was to close out all prior uncharged burglaries the defendant was alleged to have committed [FN1]. That cooperation agreement never came to fruition because the District Attorney subsequently refused to offer the defendant any type of consideration to close out any unsolved commercial burglaries.In the defendant's moving papers he proffers as his exhibit "C," a document generated by the Nassau County Medical Examiners Office. This document dealt with the DNA analysis of the burglary tools recovered from the burglary of February 23, 2007. Those burglary tools recovered were analyzed by the Nassau County Medical Examiner in the hope of connecting the defendant to the February 23, 2007, burglary. This analysis was completed on August 15, 2007.

This document has significance. It states in the first paragraph that as of August 15, 2007 the defendant was a suspect in the burglary which is the basis for the instant indictment. Further, the Nassau County Medical Examiner was able to state as of January 2008 that the DNA on the tools at the burglary at issue was that of the defendants. A confirmatory analysis of the DNA was made by the New York State Police. This confirmation was in the hands of the Nassau County District's Attorney as of August 2008. See defendant's exhibit "D" annexed to its moving papers.

To reiterate it took seven (7) months for the Nassau County Police to bring the tools from the burglary at issue to the Nassau County Medical Examiner, eight (8) further months for the New York State Police Lab to confirm the results of the Nassau County Medical Examiner, andand another eight (8) months for the defendant to be indicted by direct presentment.[FN2]

As set forth by the Court of Appeals, "unreasonable delay in prosecuting a defendant constitutes a denial of due process of law." People v. Staley, 41 NY2d 789, 791 (1977) Consequently, the test this Court must apply in its analysis is one of a due process and as such, no actual prejudice need be shown by the defendant. See People v. Staley, supra. It is patently clear to this Court that the over two (2) year delay in bringing the instant prosecution violated the defendant's due process rights and was without cause. The People in their opposition focus on a statute of limitations analysis and actual prejudice to the defendant. As set forth in Singer, these arguments are simply just not part of the equation in keeping with the Singer decision.

Accordingly, the defendant's motion to dismiss the within indictment is hereby granted and the [*3]clerk is directed to amend the defendant's commitment slip in accordance with the above ruling.[FN3]

ENTER:

Dated: November ____, 2009_______________________________

George R. Peck, A.J.S.C.

Footnotes


Footnote 1:From plea minutes of October 5, 2007. Assistant District Attorney Mindy Plotkin stated "Your Honor, if I just may add? With respect to Mr. Miller's potential cooperation in the future, as Judge Peck indicated, it may result in a downward departure in terms of the recommendation. It may also result in terms of no additional cases being brought against Mr. Miller."

Footnote 2:The Court in making its determination need not need hold an evidentiary hearing to pass on whether the People did violate the holding of People v. Singer, supra. As the evidence proffered by the defendant such as the stenographic record of the plea on the two above mentioned indictments and the report from the Office of the Nassau County Medical Examiner were not refuted by the People in their opposition.

Footnote 3: This case is a classic example of the evil which the Singer case tried to avoid. This defendant would have completed his sentence approximately on November 24, 2010. If the defendant was expeditiously found guilty, and sentenced to the minimum on February 1, 2010 to three and a half to seven years as a prior felony offender, a court in exercising all of its discretion would have been prohibited from making this sentence concurrent with the sentences under indictments #935N-07 & #1346N-07, thereby requiring, by prosecutorial negligence the defendant to serve years more in prison.