Colonie child porn case dismissed

PHOTOGRAPHER: Steven Cook

Albany County prosecutors took too long to pursue charges against a former Clifton Park town employee who was accused of possessing child pornography on his personal computer, an appeals court ruled this week.

The ruling means the charges against Michael Montague, 46, a former environmental specialist with the town, are dismissed.

In a 3-1 decision, the Appellate Division of the state Supreme Court found that the nearly five years it took to pursue state charges was too long and without justification.

The elapsed time was taken as federal prosecutors looked at possibly pursuing the case and then county prosecutors took it. By the time the county issued an indictment in the case, it was just under two months short of the five-year mark of Montague’s computer first being seized.

The majority of justices found that the case was put together early on and prosecutors “failed to establish good cause” for the lengthy delay.

“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 the defendant,” the majority wrote.

With the split decision, prosecutors have the option of going to the Court of Appeals, the state’s highest court, and asking it to hear the case. It was unclear if the Albany County District Attorney’s Office planned to do that.

The investigation of Montague began in January 2009 when his computer was seized by the Colonie Police Department when a computer repair technician reported discovering child pornography on the machine. The computer was analyzed that summer, but an indictment wasn’t reported until early December 2013.

The indictment included 26 counts of possession of a sexual performance by a child. Montague posted bail and has been free since.

Montague’s attorney, Stephen Coffey, requested and prosecutors consented to a special hearing on the lengthy delay. The judge in the case, however, denied the request.

Montague then pleaded guilty to two counts from the indictment in exchange for a total sentence of 1.3 to 4 years in state prison. The sentence was stayed pending an appeal on the delay issue.

This week’s ruling dismissed the case entirely.

Coffey said Friday that his client is happy about the ruling and said it was a good decision for the defense. He said he hadn’t heard from prosecutors on whether they would try to appeal the ruling. He declined to comment further.

Justice John Lahtinen wrote the decision for the majority; Justices William McCarthy and Robert Rose joined him. Presiding Justice Karen Peters disagreed.

Peters contended that there wasn’t enough information in the record to determine whether or not the delay was justified.

Peters wrote that prosecutors should be allowed to present additional evidence related on the reasons for the delays as she believes they were prepared to do at a hearing.

“In my view, a genuine injustice would result were our court to dismiss this most serious indictment” without allowing prosecutors to submit further evidence at a hearing.

The majority agreed that the case was serious. However, they wrote that the case wasn’t complex and didn’t require nearly five years to put together.