Calendar Date: June 1, 2018Before: McCarthy, J.P., Lynch, Devine, Clark and Rumsey, JJ.__________Thomas F. Garner, Middleburgh, for appellant.Susan J. Mallery, District Attorney, Schoharie (Michael L.Breen of counsel), for respondent.__________Clark, J.Appeal from a judgment of the County Court of SchoharieCounty (Bartlett III, J.), rendered March 31, 2016, convictingdefendant upon his plea of guilty of the crime of attemptedburglary in the third degree.In mid-July 2011, defendant was arraigned on felonycomplaints charging him with two counts of burglary in the thirddegree based upon allegations that he broke into certainconvenience stores and stole several thousand dollars worth ofcigarettes. Following a preliminary hearing, the matters wereheld over for grand jury action. On August 28, 2011, HurricaneIrene, followed by Tropical Storm Lee nine days later, causedextensive flooding damage to the Schoharie County Courthouse andthe Schoharie County District Attorney’s office. On September 7,2011, as a result of “the devastation in the courts and thesurrounding communities of Schoharie County,” County Court issuedan order extending the grand jury term by 60 days. The ChiefAdministrative Judge also issued an administrative orderdirecting that, due to the flooding damage to the SchoharieCounty Courthouse, all grand jury proceedings were to be held inthe Town of Cobleskill, Schoharie County. In October 2011,noting that the Schoharie County Courthouse had remained closedsince August 28, 2011 and that the “weather and emergencyflooding conditions continue[d] to prevent potential grand jurorsfrom being summoned,” County Court further extended the grandjury term to January 18, 2012. Meanwhile, defendant filed a prose motion for his release based upon the alleged failure oftimely grand jury action (see CPL 190.80). On September 28,2011, County Court granted the motion and defendant was releasedfrom custody.In the months that followed, the People sent defendantseveral notices of prospective grand jury proceedings (see CPL190.50 [5] [a]). However, because of alleged difficulties insecuring a quorum of grand jurors and defense counsel’sscheduling conflicts, a grand jury was not convened until earlyFebruary 2012. On February 15, 2012, the grand jury handed up anindictment charging defendant with two counts of burglary in thethird degree and two counts of grand larceny in the fourthdegree. The People declared their readiness for trial onFebruary 29, 2012, and defendant was thereafter arraigned on theindictment.Following his indictment, defendant filed an omnibus motionseeking, among other things, dismissal of the indictment onstatutory and constitutional speedy trial grounds (see CPL 30.20[1]; 30.30 [1] [a]). County Court found that an issue of factexisted with respect to a portion of the alleged preindictmentdelay and directed that a hearing be held on defendant’sstatutory speedy trial claim. Following that hearing, which washeld in August 2012, County Court issued a bench decision denyingdefendant’s motion. 1Immediately thereafter, defendant pleadedguilty to burglary in the third degree, with the understandingthat he would retain the right to appeal the denial of his motionto dismiss the indictment on speedy trial grounds. In accordancewith the plea agreement, County Court sentenced defendant, as asecond felony offender, to a prison term of 2 to 4 years andordered restitution in the amount of $8,500. Upon defendant’sappeal, this Court found that defendant had been incorrectlyinformed that he retained the right to appeal from the denial ofhis statutory speedy trial motion and, thus, that his plea wasnot knowing, intelligent and voluntary (123 AD3d 1376, 1377-1378[2014]). Accordingly, this Court reversed the judgment ofconviction, vacated defendant’s guilty plea and remitted thematter for further proceedings (123 AD3d at 1378).Upon remittal, defendant — represented by new counsel –filed another omnibus motion seeking dismissal of the indictmenton speedy trial grounds. Finding that the motion “mirror[ed]“defendant’s 2012 omnibus motion and that its denial of the motionhad not been disturbed on appeal, County Court treated the motionas one to reargue and, upon reargument, adhered to its originaldecision. At a subsequent pretrial conference, County Courtgranted defendant’s request to submit an application seekingdismissal of the indictment on the basis that his constitutionalright to a speedy trial had been violated. County Courtultimately denied that motion without a hearing. Thereafter,pursuant to a plea agreement, defendant entered an Alford plea ofguilty to attempted burglary in the third degree. Ascontemplated by the plea agreement, County Court sentenceddefendant, as a second felony offender, to 1½ to 3 years inprison and ordered him to pay restitution, as well as fees andsurcharges. Defendant now appeals.Defendant challenges County Court’s denial of his motion todismiss the indictment on constitutional speedy trial grounds, acontention that survives his guilty plea (see People v Guerrero,28 NY3d 110, 117-118 [2016]; People McCorkle, 67 AD3d 1249, 1250[2009]). In assessing whether a defendant’s constitutional rightto a speedy trial has been violated by alleged preindictmentdelay, courts must consider the extent of the delay, the reasonfor the delay, the nature of the charges against the defendant,whether there has been an extended period of pretrialincarceration and whether the defense has been impaired by reasonof the delay (see People v Taranovich, 37 NY2d 442, 445 [1975];People v Chaplin, 134 AD3d 1148, 1149 [2015], lv denied 27 NY3d1067 [2016]; People v Lanfranco, 124 AD3d 1144, 1145 [2015], lvdenied 25 NY3d 1203 [2015]). “[N]o one factor or combination ofthe factors . . . is necessarily decisive or determinative of thespeedy trial claim, but rather the particular case must beconsidered in light of all the factors as they apply to it”(People v Taranovich, 37 NY2d at 445; accord People v Wiggins, 31NY3d 1, 10 [2018]).Upon consideration of the factors, we find that theapproximately nine months between the filing of the felonycomplaints and the People’s declaration of readiness did notviolate defendant’s constitutional right to a speedy trial. Itwas established at the August 2012 hearing that, as a result ofthe devastating effects of Hurricane Irene and Tropical StormLee, a majority of the alleged delay was attributable to aninability, over a period of several months, to secure enoughgrand jurors to constitute a quorum, despite diligent efforts onthe part of the Schoharie County District Attorney’s office. Theevidence additionally demonstrated that some of the delay wascaused by defense counsel’s requests to reschedule certainprospective grand jury dates. In our view, this evidenceestablished a good faith basis for the delay (see e.g. People vChaplin, 134 AD3d at 1149; People v Gaston, 104 AD3d 1206, 1206[2014], lv denied 22 NY3d 1156 [2014]). Further, the charges –two class D and two class E felonies — were serious, and it wasundisputed that, prior to his release in September 2011,defendant had been incarcerated on the underlying charges foronly a portion of the total preindictment period — 88 days.Moreover, there was absolutely no indication that the defense hadsuffered as a result of the delay (see People v Decker, 13 NY3d12, 15 [2009]). Under these circumstances, we agree with CountyCourt that there was no constitutional speedy trial violation(see People McCorkle, 67 AD3d at 1250-1251; People v Pratt, 303AD2d 843, 843-844 [2003], lv denied 99 NY2d 657 [2003]). Whiledefendant asserts that the evidence presented at the August 2012hearing was insufficient to decide his constitutional speedytrial claim, the affidavit he submitted in support of his motionfailed to allege “any impairment of his defense as a result ofthe delay” or any other factual dispute regarding the delay thatwould warrant a further hearing (People v Coffaro, 52 NY2d 932,934 [1981]; see People v Ruise, 86 AD3d 722, 723 [2011], lvdenied 17 NY3d 861 [2011]; People v Rodriguez, 210 AD2d 104, 104[1994], lv denied 84 NY2d 1037 [1995]). Accordingly, we find noerror in County Court’s resolution of the motion without ahearing.Defendant’s remaining contentions, to the extent notspecifically addressed herein, have been examined and found to beunpersuasive.McCarthy, J.P., Lynch, Devine and Rumsey, JJ., concur.ORDERED that the judgment is affirmed.ENTER:Robert D. MaybergerClerk of the Court
