                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 2, 2015                       107013
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

MICHAEL MONTAGUE,
                    Appellant.
________________________________


Calendar Date:   April 28, 2015

Before:   Peters, P.J., Lahtinen, McCarthy and Rose, JJ.

                              __________


      O'Connell & Aronowitz, Albany (Stephen R. Coffey of
counsel), for appellant.

      P. David Soares, District Attorney, Albany (Brittany L.
Grome of counsel), for respondent.

                              __________


Lahtinen, J.

      Appeals (1) from a judgment of the County Court of Albany
County (Herrick, J.), rendered June 13, 2014, convicting
defendant upon his plea of guilty of the crime of possessing a
sexual performance by a child (two counts), and (2) from a
judgment of said court, rendered June 27, 2014, which resentenced
defendant.

      On January 28, 2009, defendant's computer was seized by the
Town of Colonie Police Department (hereinafter TCPD) after a
computer repair technician reported that he discovered the
computer contained what he believed to be child pornography. The
following day defendant was questioned by the TCPD and, in July
2009, it obtained a search warrant to analyze the content of
                                -2-                107013

defendant's computer. On December 4, 2013, defendant was
indicted and charged with 26 counts of possessing a sexual
performance by a child, a class E felony. Relevant to this
appeal, defendant moved to dismiss the indictment contending that
the nearly five-year delay in obtaining the indictment was
unreasonable and violated his due process rights. Although
defendant requested and the People consented to a Singer hearing
(see People v Singer, 44 NY2d 241 [1978]), County Court summarily
denied defendant's motion. Thereafter, reserving his right to
appeal the Singer issue, defendant pleaded guilty to two counts
of the indictment and, after an initial sentencing error, was
resentenced to concurrent prison terms of 1a to 4 years, which
County Court stayed pending disposition of the instant appeals.

      The parties agree that there has been a protracted
preindictment delay that places the burden on the People to
establish good cause for that delay (see People v Decker 13 NY3d
12, 14 [2009]; People v Singer, 44 NY2d at 253-254; People v
Gallup, 224 AD2d 838, 839 [1996]). The People state in their
brief that there are no issues of fact regarding the issue before
this Court and the record on appeal provides an adequate basis to
determine whether the protracted delay was justified.1

        In determining whether there is an undue delay, the trial


    1
        As the dissent acknowledges, the People have taken the
position on appeal that the matter should be decided on this
record and not remitted for a Singer hearing. Inasmuch as "the
parties are free to chart their own procedural course and may
fashion the basis upon which a particular controversy will be
resolved" (People v Tatro, 245 AD2d 1040, 1040-1041 [1997]
[internal quotation marks and citations omitted]; see People v
Correa, 197 AD2d 430, 432 [1993], lv denied 82 NY2d 892 [1993]),
it is not for us to point out the gaps in the People's proof and
then remit to afford the People an opportunity to submit
additional proof to meet their burden, particularly when they do
not seek such an opportunity. There is no indication that the
People had taken such a position regarding not remitting for a
hearing in People v Watts (78 AD2d 1008 [1980]), a case upon
which the dissent relies.
                              -3-                107013

court must consider "(1) the extent of the delay; (2) the reason
for the delay; (3) the nature of the underlying charge; (4)
whether or not there has been an extended period of pretrial
incarceration; and (5) whether or not there is any indication
that the defense has been impaired by reason of the delay"
(People v Taranovich, 37 NY2d 442, 445 [1975]). Here, although
defendant was not incarcerated during the period of delay and the
nature of the charges are serious,2 the extent of the delay was
clearly extensive. The People attribute the delay to the fact
that the matter was initially referred to the office of the
United States Attorney for the Northern District of New York for
prosecution, and point to vague references of personnel changes
within that office, as well as that office's decision, at some
point, not to prosecute.

      This was not a complex legal matter and the record
establishes that no further evidence was needed in order to
charge defendant beyond that gathered in the 2009 investigation
conducted by the TCPD. The record indicates that the
investigator from the TCPD was part of a task force that included
federal investigators, and, according to the People, in January
2011, the task force brought this matter to the office of the
United States Attorney. At that time, it appears that
defendant's then attorney initiated unsuccessful plea bargain
negotiations. Thereafter, for reasons not entirely clear from


    2
        We agree with the dissent that these crimes are serious.
However, analysis of this factor is "not . . . dependent upon
what one is charged with, but rather that the prosecutor may
understandably be more thorough and precise in his [or her]
preparation for the trial of a [serious felony]" (People v
Taranovich, 37 NY2d 442, 446 [1975]; see People v Johnson, 38
NY2d 271, 277-278 [1975]). "It should not be assumed . . . that
all serious offenses require a slow and careful preparation that
justifies extended delay [and] [a] court still focuses on the
particular factors of a case to determine its simplicity or
complexity" (3 Kamins, Mehler, Schwartz & Shapiro, New York
Criminal Prac § 26.03 [6]). This record reveals neither a
complex case nor that preparation for the case had anything to do
with the delay (see People v Johnson, 38 NY2d at 277).
                              -4-                107013

the record, the United States Attorney declined to prosecute and
the TCPD brought the file to the Albany County District
Attorney's office in November 2013. On this record, the People
fail to establish good cause as to why they delayed in exercising
their own jurisdiction to proceed with prosecution for nearly
five years from the date of defendant's alleged crime to the date
of the indictment. The fact that this matter was initially
referred to the United States Attorney and the TCPD did not bring
this file to the Albany County District Attorney until November
2013 provides no justifiable excuse for the delay, since both
offices are coordinate arms of the state in the criminal law
enforcement field and any delay occasioned by one is chargeable
to both (see People v Masselli, 13 NY2d 1, 4 [1963]; People v
Rivera, 298 AD2d 612, 614 [2002], lv denied 99 NY2d 619 [2003]).

      Under these circumstances, we find that the length of the
delay is such that dismissal is the appropriate remedy, despite
the absence of any actual prejudice to defendant (see People v
Wheeler, 289 AD2d 959, 960 [2001]; People v Townsend, 270 AD2d
720, 721 [2000]; People v Gallup, 224 AD2d at 840). Furthermore,
the fact that defendant was aware of the pending charges and
engaged in preindictment plea negotiations is immaterial, as this
does not excuse the People's responsibility for assuring prompt
prosecution (see generally People v Staley, 41 NY2d 789, 793
[1977]).

     McCarthy and Rose, JJ., concur.


Peters, P.J. (dissenting).

      I respectfully dissent. While I agree with the majority
that the preindictment delay at issue here was protracted, I
cannot abide my colleagues' conclusion that the record on appeal
provides an adequate basis upon which to determine whether such
delay was justified.

      In addressing an assertion of undue delay, we "must engage
in a sensitive weighing" of the five factors set forth in People
v Taranovich (37 NY2d 442, 445 [1975]), namely, "(1) the extent
of the delay; (2) the reason for the delay; (3) the nature of the
                              -5-                107013

underlying charge; (4) whether or not there has been an extended
period of pretrial incarceration; and (5) whether or not there is
any indication that the defense has been impaired by reason of
the delay" (id.; see People v Decker, 13 NY3d 12, 14-16 [2009]).
"[N]o one factor or combination of the factors . . . is
necessarily decisive or determinative . . ., but rather the
particular case must be considered in light of all the factors as
they apply to it" (People v Taranovich, 37 NY2d at 445).

      Four of the Taranovich factors are readily ascertainable
and evaluated here. The preindictment delay, which lasted nearly
four years and 10 months, was clearly extensive. On the other
hand, the underlying charges – 26 counts of possessing a sexual
performance by a child, a class E felony (see Penal Law § 263.16)
– were very serious,1 and defendant was neither incarcerated
pretrial nor subjected to any actual prejudice by reason of the
delay.

      The record, however, is shockingly sparse concerning the
reason for the preindictment delay. In opposition to defendant's
motion to dismiss, the People asserted that the Town of Colonie
Police Department originally referred the matter to the office of
the United States Attorney for the Northern District of New York
and did not provide the People with defendant's file until
November 2013. However, without explaining the source of their
knowledge, they go on to summarize events that took place before
they received the file, including unsuccessful preindictment
negotiations between defense counsel and a federal prosecutor,
defendant's firing of his attorney, the assignment of a new
Assistant United States Attorney to the case and the decision of
the United States Attorney not to prosecute defendant.



    1
        Specifically, defendant was charged with the possession
of 26 digital video files containing graphic and disturbing
titles such as "baby rape," "family fun dad teaches bro and sis
abt 9,10 kid sex incest," "illegal Lolita daughter incest,"
"child prostitute XXX HC Pedo," "Bedtime Rape Until Cum private
pedo child girl," "Two 7,8 Yr. Old Girls Gives Hand-Job to Man"
and "XXX – Incest – 5 yo raped, hymen penetrated."
                              -6-                107013

      The People's proffered reasons raise more questions than
they answer. For example, the People did not reveal when and how
they first learned that the matter had been referred to the
United States Attorney, nor did they offer any explanation as to
why they did not prosecute defendant while he was subject to
federal indictment. While the answers to these questions, and
others, may not be readily available, I find it significant that
the People consented to a Singer hearing, thereby suggesting that
they possessed additional information that could illuminate the
circumstances that precipitated the delay.2 That the statements
made in the sparse, 1½-page affidavit submitted by the People are
based merely upon a review of the files maintained by the Albany
County District Attorney – and do not come from someone with
personal knowledge of the circumstances – further supports this
conclusion.

      With so little information provided as to the precise
reasons for the delay, I find it "impossible for any court to
engage in th[e required] balancing process" (Matter of Benjamin
L., 92 NY2d 660, 670 [1999]; see People v Singer, 44 NY2d 241,
255 [1978]; see generally People v Watts, 78 AD2d 1008, 1009
[1980]; People v Keane, 34 Misc 3d 159[A], 2012 NY Slip Op
50439[U], *1-*2 [Sup Ct, App Term 2012]), and am unable to fathom
why County Court failed to conduct a Singer hearing. Although
the reason for the delay "may not be determinative, it might be
relevant in relation to the other enumerated factors" (Matter of
Benjamin L., 92 NY2d at 670 [internal citations omitted]),
particularly in light of the serious nature of the charges, the
fact that defendant was not incarcerated pretrial and the absence
of any demonstrated prejudice to defendant. While I am mindful
that the People bear "the burden of establishing the reasons for
the delay, [their] failure to do so on this record should not be
conclusive" (id.; see People v Singer, 44 NY2d at 255). In my
view, a genuine injustice would result were our Court to dismiss
this most serious indictment without affording the People an


    2
        I am not persuaded that a Singer hearing is unnecessary
simply because the People – in urging this Court to affirm County
Court's denial of the motion – appeared to say as much in their
submissions to this Court and at oral argument.
                              -7-                  107013

"opportunity to present additional evidence" (People v Singer, 44
NY2d at 255) so as to allow County Court to fully "explore the
reason for the delay" and engage in a sensitive balancing of the
Taranovich factors (Matter of Benjamin L., 92 NY2d at 670; see
generally People v Watts, 78 AD2d at 1009). Accordingly, in
accordance with People v Watts (78 AD2d at 1009), I would hold
the appeal in abeyance and remit the matter to County Court for a
Singer hearing and determination before a different judge.



      ORDERED that the judgments are reversed, on the law, and
indictment dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
