| People v Rolle |
| 2009 NY Slip Op 00591 [59 AD3d 169] |
| February 3, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Tyrone Rolle, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Gina Mignola of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered September 8,2006, convicting defendant, after a jury trial, of rape in the first degree (three counts), sodomy inthe first degree (two counts), burglary in the first degree and attempted robbery in the first andsecond degrees, and sentencing him, as a second felony offender, to an aggregate term of 50years, unanimously affirmed.
The court properly denied defendant's motion to dismiss the indictment as time-barred. Theparties' submissions were sufficient to decide the issue, and there was no factual disputerequiring an evidentiary hearing. The applicable five-year statute of limitations was tolledpursuant to CPL 30.10 (4) (a) (ii) because defendant's identity and whereabouts were unknownfollowing the attack and were unascertainable by the exercise of reasonable diligence (seePeople v Seda, 93 NY2d 307 [1999]). The People met their initial burden of showingreasonable diligence, and defendant did not raise any factual issue to the contrary (see Peoplev Jones, 299 AD2d 283 [2002], lv denied 99 NY2d 655 [2003]). After this June1996 crime in which the victim was unable to identify anyone, law enforcement authoritiesexhausted all reasonable investigative steps. Thus, the statute of limitations was clearly tolleduntil at least March of 2000, when the authorities acquired the ability to solve the crime bymatching DNA. When this capability came into existence, that event cannot be viewed asimmediately cutting off the toll, because the case at bar was one of about 18,000 similar "coldcases" awaiting DNA comparison. Under these circumstances, the record warrants theconclusion that the People acted with reasonable diligence in obtaining a DNA match (see People v Lloyd, 23 AD3d 296[2005], lv denied 6 NY3d 755 [2005]). Thus, the five-year statute of limitations wastolled from the time of the crime until well past 2000. Accordingly, this August 2005 indictmentwas timely. Defendant's claim of unconstitutional preindictment delay is also without merit(see United States v Lovasco, 431 US 783 [1977]; People v Singer, 44 NY2d241, 252-255 [1978]; People v Taranovich, 37 NY2d 442 [1975]).
We reject defendant's right to counsel arguments. Defendant knowingly, intelligently andvoluntarily waived his right to counsel during trial after being fully warned by the court of theconsequences of proceeding pro se. There is no merit to defendant's assertion that his midtrial[*2]decision to represent himself was coerced by his allegedinability to consult with counsel during the pendency of the case due to his pretrial incarcerationin an upstate correctional facility. The record establishes that the court took sufficient action toalleviate the situation, and that it ensured that defendant had ample opportunity to consult withcounsel prior to the suppression hearing, prior to jury selection, and prior to and throughout thetrial. Moreover, the court made the appropriate searching inquiry to establish that defendant'sdecision to waive counsel was valid (see People v Arroyo, 98 NY2d 101 [2002]).Concur—Gonzalez, J.P., Buckley, Catterson, McGuire and Acosta, JJ.