Opinion
5630/2010 2522/2011
07-21-2020
The PEOPLE of the State of New York v. Rixner JOHNSON, Defendant.
For the People: Katelyn Demaris, New York County District Attorney's Office, 1 Hogan Place, New York, NY For the Defendant: Robert W. Georges, Konta & Georges PC, 233 Broadway, Suite 900, New York, NY 10279
For the People: Katelyn Demaris, New York County District Attorney's Office, 1 Hogan Place, New York, NY
For the Defendant: Robert W. Georges, Konta & Georges PC, 233 Broadway, Suite 900, New York, NY 10279
Mark Dwyer, J.
Defendant Rixner Johnson faces charges under two New York County indictments. The earlier of the two, Indictment 5630/2009, accuses defendant of Criminal Possession of a Forged instrument in the Second Degree and related offenses. Defendant pleaded guilty on April 20, 2010, to possessing a forged instrument, but he thereafter failed to appear for sentencing. The second indictment, Indictment 2522/2011, charges defendant with Bail Jumping in the Second Degree. Defendant, having recently been returned to New York, now asserts that he is entitled to dismissal of both indictments. He argues that the People violated his constitutional and statutory rights by failing to make timely efforts to return him to New York for sentencing on the first indictment, and for prosecution on the second. For the reasons stated below, defendant's motion is denied.
A
The parties have not expressly agreed on the facts that follow. But these are the material facts alleged by the People and supported by documentary evidence.
In 2009, defendant was indicted for Criminal Possession of a Forged Instrument in the Second Degree and other charges. On April 20, 2010, he pleaded guilty to the forged instrument charge, a class D felony, in return for a promise that he would be sentenced as a predicate felon to a term of two to four years. Defendant was advised that he was obliged to return on July 8, 2010, for sentencing; if he did so he would be permitted a reduced plea to a class E felony and a sentence of one and one-half to three years. Defendant did not return for sentencing, and a bench warrant was issued. On May 18, 2011, defendant was indicted for Bail Jumping in the Second Degree. Detainers for defendant were lodged with NCIC, the FBI's National Crime Information Center.
Defendant was arrested in Hawaii on July 22, 2012. The Hawaii authorities ran defendant's fingerprints through AFIS, the Automated Fingerprint Identification System, an FBI database separate from NCIC that contains biometric fingerprint data. There apparently was no "hit" — the Hawaii court records listed defendant as a first felony offender despite the prior conviction that made him a predicate felon in the 2009 New York case. The Hawaii case file for defendant contains no indication that the Hawaii authorities ran defendant's information through NCIC. In any event, and critically, those authorities never notified New York officials that defendant was in Hawaii custody. Defendant posted a bond and was released on November 21, 2012. He jumped bail, and a bench warrant was issued by the Hawaii authorities on June 10, 2013.
In the meantime, on January 2, 2013, defendant had been arrested in Nevada. One of the specified reasons for that arrest was "fugitive from another state on cmpl/warrant." The Nevada authorities notified New York that defendant was in custody. On January 15, 2013, the New York County District Attorney's Office sent Nevada a detainer letter and a copy of the New York bench warrant. The New York authorities also advised the Nevada prosecutors that New York would extradite defendant. Follow-up letters were sent on January 28th and April 5th. Nonetheless, Nevada authorities released defendant on May 2, 2013, without any notice to New York. In a letter dated May 5th, Nevada advised the New York prosecutors that the release was the result of an "entry error."
On December 13, 2019, California authorities emailed notice to New York that defendant was in their custody. The People requested that defendant be extradited, and this time there was no "entry error." Defendant was produced in Part 41 on January 22, 2020. He was arraigned on the bail jumping charge and was remanded pending sentencing on the forged instrument charge.
B
As noted, defendant now moves to dismiss both indictments. The motion will be denied.
A general statement of the pertinent law raises no issue. First, once a defendant is charged with a crime he is entitled to a speedy disposition of the charge. CPL Sections 30.20, 30.30. Second, and similarly, a defendant who has been convicted is entitled to be sentenced without unreasonable delay. CPL Section 380.30 (1). Finally — and counterintuitive though it may sound — a defendant who flees the jurisdiction during his prosecution is still entitled to a speedy disposition if he has not been convicted, and a speedy sentencing if he has. As a result, in either case the People must exercise due diligence to find the reluctant defendant and return him to court. If the People fail to exercise due diligence, the defendant may be entitled to dismissal of the charges against him. See, e.g. , People v. Drake , 61 NY2d 359, 364–66 (1984).
As to what constitutes due diligence, uncannily on point with this case is People v. Robinson , 69 AD3d 498 (1st Dept 2010). In Robinson a Manhattan defendant failed to appear for sentencing after his 1997 guilty plea. He was arrested and briefly incarcerated in New Jersey in 1999, but apparently the New York authorities did not receive notice of that arrest. Robinson was released, and absconded. He was arrested again in 2005, this time in Pennsylvania, and on this occasion the People made a "prompt" extradition request. And on this occasion Robinson, having been held for only 10 days, was released — and again fled. After Robinson was finally returned to New York and sentenced in 2008, the Appellate Division held that the 11-year delay was no basis for dismissal. See also, e.g. , People v. Maldonado , 52 AD3d 344 (1st Dept 2008) ; People v. McQuilken , 249 AD2d 35 (1st Dept 1998).
C
Under those precedents, defendant is not entitled to relief here. First, when defendant absconded in 2010 the People had no idea where in the country, or indeed where in the world, he had gone. As a result, defendant was in a more advantageous position than the proverbial needle in a haystack. The People were nonetheless obliged to exercise due diligence to bring defendant back to New York. But that duty did not require the People to flood every corner of the country with police squads devoted to locating defendant. The People instead lodged detainer information in the appropriate federal database, and awaited developments.
As just noted, over the decade of defendant's flight he could have been anywhere. Indeed, during defendant's career before and after his New York crimes he had developed criminal justice contacts in at least five states outside New York. The People's response to his flight from New York — notifying authorities throughout the country of defendant's situation via a federal system designed for that very purpose — was reasonable, and satisfied the due diligence standard discussed above.
Twice over, that action should in fact have sufficed to locate defendant and achieve his return with relatively little delay. But in each instance, through no fault of the People, a sister state dropped the ball. Hawaii did not notify New York when defendant faced 2012 charges there — and defendant jumped bail again. Nevada did inform New York that defendant was arrested there in early 2013, and New York asked Nevada to hold defendant for the New York authorities. But, due to an "entry error," Nevada let him go. Finally, in December of 2019 California located defendant and so informed the People. The People brought defendant back straight-away, in time for a court appearance in January of 2020.
Defendant in fact may no longer dispute that the People acted reasonably — except for one set of circumstances in 2013. Defendant was released on bail in November of 2012 and fled from Hawaii. A bench warrant was issued in June of 2013. That left his Hawaii bail bondsman and the bondsman's insurance company liable for a very substantial sum — $300,000. A detective agency was hired to find defendant. The agency operatives outdid the Hawaii authorities — they learned of the New York warrant. The Hawaii court then stayed forfeiture of the bond, giving the agency a two-month period to find defendant. The operatives sought defendant, in ways that presumably involved diligence, but without success. The agency asked the court for another month, informing the judge that it had identified several addresses in California where defendant might be living. The court denied the extension, and the matter ended there.
Defendant now says that in 2013 he in fact was living at one of those addresses, and that he continued to do so afterwards. His current dismissal theory is that if the bondsman's investigators could learn of the pending New York case, the New York authorities should have learned of the Hawaii case. Had they done so, the authorities would then have been able to obtain defendant's possible addresses as the detective agency did, search those several locations, locate defendant, and return him to New York. The failure to do all that, argues defendant, shows that the People did not exercise due diligence.
The court rejects defendant's theory. Once defendant was released in Nevada, the case returned to the posture it was in before January of 2013. Again, after defendant's release he could have gone anywhere in the country, or beyond. Moreover, the People still had every reason to conclude that if another state had a pending case against defendant, it would notify New York — as Nevada had. The court knows of no case that would require that New York authorities check, individually and at regular intervals, the records of the 50 states (and the territories) so that this state might grant speedy resolutions to defendants who are in hiding. Hawaii flat-out failed to meet its extradition obligations. New York authorities could not be expected to find defendant's Hawaii case, inquire about the bondsman's investigative agency, and then pursue whatever leads had been left over from that agency's failed effort to track defendant down.
D
As this opinion was nearing completion, defendant obtained new counsel. Defendant's position now seems to be that Nevada held defendant for months only because the Nevada authorities were waiting for New York authorities to pick him up. The theory apparently suggested is that it was because the New York authorities did not arrive that Nevada released defendant. Central to that position is the assumption that, while defendant was being held in Nevada, New York did not take action — such as telling Nevada that defendant would be picked up when Nevada was done with whatever proceedings that state had against him. But that view is unsourced and is inconsistent with the People's assertion that they three times told Nevada that they would prosecute defendant. And it is inconsistent with the Nevada statement that defendant was released, not because the authorities there thought that New York did not want defendant, but because of a clerical error.
Defendant also notes that, after defendant's recent return to New York in 2019, the New York officials had a question for the Hawaii authorities. The People asked whether the case file in Hawaii showed that, in 2012, the prosecutors there knew of the New York charges. The reply was that the Hawaii file contained no indication that Hawaii officials knew about the New York case. Defendant posits that this perfectly appropriate question, one pertinent to our issues here, induced the Hawaii officials to hide evidence that in 2012 they in fact sent notice to New York. That theory is likewise unsupported and is even more speculative than defendant's other theories.
All this underscores what the court said above. The People have asserted, with documentary support, that they acted reasonably to return defendant to New York after he fled in 2010. Defendant has not conceded that the People did so. If defendant can support a good-faith allegation that the Peoples' factual statements are incorrect, he can obtain a hearing. In the meantime, the court will proceed toward sentencing in the 2009 case, and with further proceedings in the bail jump case.
* * *
Defendant's motion to dismiss the indictments is denied.