133 A.D.2d 492 | N.Y. App. Div. | 1987
Appeal from a judgment of the County Court of Albany County (Harris, J.), rendered March 23, 1984, convicting defendant upon his plea of guilty of the crime of attempted rape in the first degree.
On January 5, 1978, an Albany County Grand Jury indicted Louis Rios and a second unknown person, designated "John Doe”, for a rape committed by two men on December 13, 1977 at the State University of New York at Albany (SUNY/Albany) campus. Thereafter, on June 30, 1983, City of Albany Police Officer Timothy Carroll responded to a domestic disturbance at 175 Jay Street, where in a conversation with defendant the latter stated that "the police want me” and that he knew "stuff about rapes”. Defendant accompanied Carroll to the police station, where he further stated that he and Louis Rios had taken a woman to the SUNY/Albany campus and "had sex” with her. At this juncture, Carroll ran a file check and discovered that Rios had previously been arrested for rape
On this appeal, defendant initially maintains that the statements were obtained in violation of his right to counsel. Specifically, defendant asserts that his indelible right to counsel attached with the filing of the “John Doe” indictment on January 5, 1978. Since the challenged statements were taken without the presence of counsel, defendant maintains that these statements should be suppressed within the rule set forth in People v Samuels (49 NY2d 218, 222-223). We disagree. This court has previously determined that the filing of a "John Doe” felony complaint does not serve to commence a criminal action so as to activate a defendant’s indelible right to counsel (see, People v Timmons, 95 AD2d 955, 956; People v Pawlyshyn, 79 AD2d 771). The same result obtains with the filing of a “John Doe” indictment, for in neither instance has a specific individual been singled out for prosecution by the State, necessitating the protection flowing from the attachment of an accused’s right to counsel.
Defendant urges, however, that the instant case is distinguished from Timmons and Pawlyshyn in that the police had an adequate description of him shortly after the issuance of the “John Doe” indictment, such that the indictment should be treated as having formally commenced the action against him. We find the argument unconvincing. On the day the "John Doe” indictment was filed, an arrest warrant was issued which identified the unknown perpetrator as " 'Black Male, 18 years, 5’ 8”, 160 lbs, short Afro Hairstyle, Med. black-tone skin, poor complex. Glasses (Plastic Frame off-yellow color)’ ” (see, Dabbs v State of New York, 59 NY2d 213, 216). The record further indicates that at some point in 1978 a statement was taken from someone named Brown to the effect that while Brown was incarcerated with Rios, the latter identified "James Dickson, James Sonny Dickson” as his accomplice. It further appears that the victim thereafter selected defendant’s photograph from a photo array stating, "I am eighty percent sure that this is the man but not totally
Defendant further maintains that County Court lacked jurisdiction since the five-year Statute of Limitations (see, CPL 30.10 [2] [b]) had run before the action was commenced against him.
Thus, while it appears that the time limitations set forth in CPL 30.10 (2) (b) are more protective than those guaranteed by the Constitution, the question remains whether a criminal Statute of Limitations is deemed jurisdictional in nature. In People v Kohut (30 NY2d 183), the Court of Appeals determined that where a defendant properly raises a Statute of
Finally, the sentence imposed was well within County Court’s discretion.
Judgment affirmed. Mahoney, P. J., Main, Casey, Weiss and Mikoll, JJ., concur.
We note that defendant raised this same objection pursuant to a CPL 440.10 motion in County Court to vacate the judgment. By decision dated November 25, 1985, County Court denied the motion, finding that the record provided an adequate basis for review on appeal (CPL 440.10 [2] [b]; 440.30 [2]).