No. 76 - People v. Scott Parilla

While imprisoned for raping and stabbing a Bronx woman in September 1993, Scott Parilla provided blood samples in July 1996 and again in December 2000 for inclusion in the Combined DNA Index System pursuant to Executive Law § 995-c. In December 2002, a databank search matched his DNA sample with semen recovered from one of two women who had been sexually assaulted in the Bronx's Scandler Park in August 1993.

Parilla was charged with those assaults in an indictment filed in April 2003.
Two months later, Parilla submitted a pro se motion to dismiss the charges on the ground that the five year statute of limitations had expired. Supreme Court refused to entertain the motion because Parilla's counsel did not adopt it, although the court also indicated it would deny such a motion because the limitations period is extended by an additional five years when the whereabouts of the defendant are unknown. Parilla ultimately pleaded guilty to single counts of first degree rape and sodomy in exchange for a sentence of 6 to 12 years, waiving his right to appeal as part of the deal. When Parilla contested his second-felony offender status, the court said his sentence would be 7 to 14 years and gave Parilla an opportunity to withdraw his plea. Parilla declined to withdraw his plea and he was sentenced to 7 to 14 years in prison.

Parilla filed a pro se CPL 440.10 motion to vacate his conviction, contending he was deprived of his constitutional right to effective assistance of counsel by his attorney's failure to seek dismissal of the charges as time-barred. He also argued the trial court denied him due process by refusing to honor the original sentencing agreement. Supreme Court denied the motion based on his appeal waiver.

The Appellate Division, First Department affirmed, saying, "Regardless of whether or not these claims go to the voluntariness of the plea and thus survive the appeal waiver ..., we find both arguments to be without merit." Finding that Parilla received effective assistance of counsel, the court said, "The record establishes that a motion to dismiss the indictment on statute of limitations grounds would have been futile. The applicable statute of limitations was tolled pursuant to CPL 30.10(4)(a)(ii) because defendant's identity, and therefore his whereabouts, were unknown and could not be ascertained by the exercise of reasonable diligence.... At the time
of this 1993 crime, the victim would not view photographs or otherwise cooperate, and the police had no evidence, or means of obtaining evidence, until the advent of modern DNA technology...." Regarding the enhanced sentence, the Appellate Division said the trial court "provided defendant with a suitable remedy by offering him the opportunity to withdraw his plea."

Parilla argues a motion to dismiss would not have been futile because police reports from 1993 "demonstrate that detectives closed the investigation, not because they were unable to identify or locate an assailant, but because they determined the two complainants' allegations were baseless, abandoning any efforts to identify an assailant. With the case closed, authorities exercised no diligence whatsoever.... Since there was no basis for tolling the statute of limitations," the prosecution should have been time-barred and his attorney's "failure to file that motion fell below an objective standard of reasonableness, and harmed defendant." He contends his guilty plea and appeal waiver do not affect his right to appeal the effectiveness of his counsel "because a defendant never waives a claim that his guilty plea was not knowing and voluntary.