SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

690 

KA 11-01761 

PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND SCONIERS, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

CRAIG BURROUGHS, DEFENDANT-APPELLANT. 

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF

COUNSEL), FOR DEFENDANT-APPELLANT.

CRAIG BURROUGHS, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Erie County

(Christopher J. Burns, J.), rendered July 19, 2011. The judgment

convicted defendant, upon a jury verdict, of sodomy in the first

degree (two counts), sodomy in the third degree (two counts), rape in

the first degree and rape in the third degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by reversing those parts convicting

defendant of rape in the third degree under count six of the

indictment, sodomy in the first degree under counts one and three of

the indictment, and sodomy in the third degree under counts two and

four of the indictment and dismissing those counts, and as modified

the judgment is affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

following a jury trial of rape in the first degree (Penal Law § 130.35

[1]), rape in the third degree (§ 130.25 [2]), and two counts each of

sodomy in the first degree (former § 130.50 [1]) and sodomy in the

third degree (former § 130.40 [2]). We agree with defendant that

Supreme Court erred in denying his omnibus motion to the extent that

it sought to dismiss as time-barred all counts of the indictment

except that charging rape in the first degree. 

The facts relevant to this issue are not in dispute. On December

10, 2002, the victim was raped and sodomized by a stranger who dragged

her into the woods while she was walking to school. Following the

attack, the victim was taken to the hospital where a rape kit was

performed. The rape kit yielded a DNA profile of the male

perpetrator, and that profile was entered in the statewide DNA

databank in January 2003. Although defendant’s DNA profile had been
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KA 11-01761 

in the statewide databank since 1998, he did not become a suspect

until January 2008, when the Division of Criminal Justice Services

notified local authorities that defendant’s DNA profile matched that

of the perpetrator. 

For reasons that are unclear from the record, the police did not

arrest defendant until more than two years later, on February 25,

2010, which was more than seven years after the crimes at issue were

committed. An indictment was later filed charging defendant with rape

in the first and third degrees, and two counts each of sodomy in the

first and third degrees. Notably, although the crimes of sodomy in

the first and third degree had in 2003 been renamed criminal sexual

act in the first and third degree, respectively, that change in

nomenclature was not retroactive and did not apply to defendant, who

was thus properly charged with sodomy rather than criminal sexual act

(see L 2003, ch 264, § 72 [eff Nov. 1, 2003]). In his omnibus motion,

defendant sought, inter alia, dismissal of all of the charges on the

ground that they were untimely because he was not charged within the

applicable statute of limitations. The court denied the motion, and

defendant was later found guilty of all counts of the indictment. 

With respect to the merits, we note that, in 2002, when the

crimes were committed, the statute of limitations for the charged

offenses was five years (see CPL 30.10 former [2] [b]). Because he

was not charged until more than seven years later, defendant raised a

facially viable statute of limitations defense, and the burden thus

shifted to the People to prove beyond a reasonable doubt that the

statute of limitations was tolled or otherwise inapplicable (see

People v Kohut, 30 NY2d 183, 186; People v Dickson, 133 AD2d 492, 494-

495; see also People v Knobel, 94 NY2d 226, 229). We conclude that

the People satisfied their burden with respect to the charge of rape

in the first degree. As the People correctly contend, the legislature

amended CPL 30.10 in 2006 so as to abolish the statute of limitations

for four sex offenses, including rape in the first degree and criminal

sexual act in the first degree (see L 2006, ch 3, § 1). The amendment

applied not only to crimes committed after its effective date of June

23, 2006, but also to offenses that were not yet time-barred (see L

2006, ch 3, § 5 [a]). Because the charge of rape in the first degree

against defendant was not time-barred when the amendment took effect,

the amendment applied to count five of the indictment, charging rape

in the first degree. 

Contrary to the People’s contention, however, the 2006 amendment

to CPL 30.10 did not apply to sodomy in the first degree, as charged

in counts one and three of the indictment. Although, as noted, the

amendment abolished the statute of limitations for criminal sexual act

in the first degree, it made no mention of sodomy in the first degree

(see L 2006, ch 3, § 1). The legislature had therefore, perhaps

unwittingly, kept the statute of limitations for sodomy in the first

degree at five years. In 2008, the legislature corrected the apparent

oversight by again amending CPL 30.10, this time by striking “criminal

sexual act in the first degree” from the list of offenses for which

the statute of limitations was abolished and substituting in its place

the phrase “a crime defined or formerly defined in section 130.50 of
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KA 11-01761 

the penal law” (L 2008, ch 467, § 1; see CPL 30.10 [2] [a]). The

legislative history of the 2008 amendment explicitly acknowledges that

the 2006 amendment had not eliminated the statute of limitations for

acts of first degree sodomy committed before November 1, 2003, i.e.,

the effective date of the non-retroactive nomenclature change (see

Senate Introducer Mem in Support, Bill Jacket, L 2008, ch 467 at 9;

Letter from State Assembly Member, July 28, 2008, Bill Jacket, L 2008,

ch 467 at 7). The statute, as amended in 2008, abolished the statute

of limitations for crimes of sodomy in the first degree committed

after the effective date of August 5, 2008 and for those crimes that

were not yet time-barred as of that date (see L 2008, ch 476, § 2). 

The sodomy charges against defendant, however, had expired under the

former five-year statute of limitations approximately nine months

before the effective date of the 2008 amendment, and thus those

charges are time-barred despite the amendment. Additionally, we note

that it is well established that a change to the statute of

limitations may not be retroactively applied to revive charges that

are already time-barred (see Stogner v California, 539 US 607, 609-

621; People ex rel. Reibman v Warden of County Jail at Salem, 242 App

Div 282, 286). 

The People’s alternative contention that the statute of

limitations on all counts was tolled until 2006 pursuant to CPL 30.10

(4) (a) (ii) because “the whereabouts of the defendant were

continuously unknown and continuously unascertainable by the exercise

of reasonable diligence” is also without merit. According to the

People, defendant’s identity as the perpetrator was not known until

2006. It is undisputed, however, that defendant’s DNA profile had

been in the statewide databank since 1998, and the People offer no

explanation as to why his identity could not have been ascertained

sooner by the exercise of reasonable diligence, especially given that

the perpetrator’s DNA was entered into the databank in January 2003

(cf. People v Bradberry, 68 AD3d 1688, 1689-1690, lv denied 14 NY3d

838). We thus conclude that the People failed to prove beyond a

reasonable doubt that the tolling provision of CPL 30.10 (4) (a)

applies (see People v Landy, 125 AD2d 703, 704-705, lv denied 69 NY2d

882). The court therefore erred in refusing to dismiss as untimely

those counts of the indictment charging defendant with sodomy in the

first degree, sodomy in the third degree, and rape in the third

degree, and we modify the judgment of conviction accordingly. The

court otherwise properly denied the motion. 

In light of the above analysis, we need not address defendant’s

contention that the sodomy counts were rendered duplicitous by the

victim’s trial testimony. We reject defendant’s further contention

that the evidence is legally insufficient to prove his identity as the

rapist (see generally People v Bleakley, 69 NY2d 490, 495). The

People’s expert testified at trial that defendant’s DNA matched the

DNA obtained from the victim’s rape kit and that the odds that the DNA

from the rape kit came from someone other than defendant were 1 in

49.9 billion. In addition, defendant admitted at trial that he was

not incarcerated and was living in Buffalo on December 10, 2002, the

date on which the crimes were committed, and that he did not have a

twin brother, who is the only person who could have shared his DNA. 
-4- 690 

KA 11-01761 

Although the victim was unable to identify defendant at trial, i.e,

she testified that her attacker ordered her not to look at him, the

DNA evidence alone “established defendant’s identity beyond a

reasonable doubt” (People v Harrison, 22 AD3d 236, 236, lv denied 6

NY3d 754; see People v Rush, 242 AD2d 108, 110, lv denied 92 NY2d 860,

reconsideration denied 92 NY2d 905; see also People v Knight, 280 AD2d

937, 937-938, lv denied 96 NY2d 864). Viewing the evidence in light

of the elements of the crimes as charged to the jury (see People v

Danielson, 9 NY3d 342, 349), we further conclude that the verdict is

not against the weight of the evidence (see generally Bleakley, 69

NY2d at 495). 

Although we agree with defendant that he should not have been

shackled when he testified before the grand jury, we conclude that

reversal on that basis is not warranted. As the People correctly

contend, the prosecutor’s cautionary instructions to the grand jurors,

which forbade them from drawing any negative inferences from the

shackling, “were sufficient to dispel any potential prejudice” to

defendant (People v Muniz, 93 AD3d 871, 872, lv denied 19 NY3d 965,

reconsideration denied 19 NY3d 1028; see People v Gilmore, 12 AD3d

1155, 1156; People v Pennick, 2 AD3d 1427, 1427-1428, lv denied 1 NY3d

632; People v Felder, 201 AD2d 884, 885, lv denied 83 NY2d 871). 

Moreover, the evidence presented to the grand jury was overwhelming,

and it cannot be said that defendant’s improper shackling amounted to

an “instance[] where prosecutorial wrongdoing, fraudulent conduct or

errors potentially prejudice[d] the ultimate decision reached by the

[g]rand [j]ury” such that dismissal of the indictment is warranted

(People v Huston, 88 NY2d 400, 409; cf. People v Buccina, 62 AD3d

1252, 1254, lv denied 12 NY3d 913; see generally People v Clyde, 18

NY3d 145, 153-154). 

We reject defendant’s contention that his sentence is unduly

harsh and severe. Although the court imposed the maximum period of

imprisonment for rape in the first degree, namely, a determinate term

of 25 years, plus five years of postrelease supervision (see Penal Law

§§ 70.02 [1] [a]; 70.06 [6] [a]; 70.45 former [2]; 130.35 [1]), we

perceive no basis in the record to modify that sentence as a matter of

discretion in the interest of justice (see CPL 470.15 [6] [b]). We

note that defendant has an extensive criminal history, which includes

six prior felony convictions, and that in the instant matter he

brutally raped a 15-year-old girl who was on her way to school. 

Having reviewed defendant’s remaining contentions, including

those raised in his pro se supplemental brief, we conclude that none

warrants reversal or further modification of the judgment of

conviction. 

Entered: July 5, 2013 Frances E. Cafarell

Clerk of the Court