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
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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. 
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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). 
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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
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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."
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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, 11⁄2-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. 
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"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