| People v Bradberry |
| 2009 NY Slip Op 09771 [68 AD3d 1688] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DarrenBradberry, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), renderedOctober 11, 2007. The judgment convicted defendant, upon a jury verdict, of rape in the firstdegree and burglary in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofrape in the first degree (Penal Law § 130.35 [1]) and burglary in the second degree(§ 140.25 [2]). The victim alleged that in 1997 a man broke into her apartment, placed apillowcase over her head while she was asleep, and demanded drugs. She further alleged that theperpetrator raped her when she told him that she had no drugs or money. The victim never sawthe face of the perpetrator, nor did she recognize his voice. The police gathered evidence,including seminal material, but they had no eyewitnesses and were unable to identify theperpetrator. Using funding from a 2004 grant that enabled laboratories to process DNA evidencefrom unsolved crimes, the Niagara County crime laboratory forwarded the evidence in this caseto the Erie County Public Safety Laboratory for DNA testing. A DNA profile of the perpetratorwas obtained and submitted to the Combined DNA Index System (CODIS) for comparison, butno match was found at that time. Defendant was convicted of manslaughter in an unrelated casein 2005, however, and a DNA sample upon his conviction was submitted to CODIS (seegenerally Executive Law § 995-c). The DNA profile from the crimes in this casematched the sample of defendant's DNA that was submitted to CODIS, and defendant was thenindicted for and convicted of the instant crimes.
Defendant waived his contention that the statute of limitations expired due to the delaybetween the commission of the crime and the commencement of the action (see People v Mills, 1 NY3d 269,274 [2003]; People v Blake, 121 App Div 613 [1907], affd 193 NY 616 [1908];People v Austin, 63 App Div 382 [1901], affd 170 NY 585 [1902]). In any event,we conclude that defendant's contention lacks merit. The delay was attributable to the lack of aDNA sample from defendant to compare with the DNA sample found at the rape and burglaryscene, and the People did not obtain DNA material from defendant until after his sentencing onthe 2005 manslaughter conviction. Consequently, defendant's identity was unknown until thattime, and the limitations period was therefore tolled pursuant to CPL 30.10 (4) (a) for five of theyears between the commission of the crime and the [*2]discoveryof defendant's identity (see People v Seda, 93 NY2d 307, 311 [1999]). That statuteapplies to the facts in this case, when the police "have not identified the perpetrator at all andthus cannot determine where he or she is" (id.). When that five-year period is added tothe five-year limitations period in effect in 1997 with respect to the instant felony charges(see CPL 30.10 [2] [former (b)]), the prosecution was timely. Defendant's furthercontention that County Court erred in deciding the statute of limitations issue without firstconducting a hearing is without merit. Where, as here, the evidence before the court is sufficientto establish that the statute of limitations is tolled, there is no need for a hearing on the issue (see People v Rolle, 59 AD3d 169[2009], lv denied 12 NY3d 920 [2009]).
Defendant also failed to preserve for our review his further contention that he was denieddue process, i.e., his constitutional right to a speedy trial, by the delay in commencing theprosecution (see People v Denis, 276 AD2d 237, 246-247 [2000], lv denied 96NY2d 782, 861 [2001]; see generallyPeople v Charache, 32 AD3d 1345 [2006], affd 9 NY3d 829 [2007]; People v Malave, 52 AD3d 1313,1315 [2008], lv denied 11 NY3d 790 [2008]). In any event, that contention also iswithout merit. In determining whether defendant's constitutional right to a speedy trial wasviolated by an undue delay in commencing a prosecution, a court must evaluate "(1) the extent ofthe delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or notthere has been an extended period of pretrial incarceration; and (5) whether or not there is anyindication that the defense has been impaired by reason of the delay" (People vTaranovich, 37 NY2d 442, 445 [1975]). Here, although there is no question that there was alengthy delay, we note that the reason for the delay was that the crimes were committed beforethe institution of CODIS and the police did not have a sample of defendant's DNA to whichevidence from the crime could be compared until defendant was convicted of the subsequentcrime of manslaughter, resulting in the entry of his DNA profile in CODIS. Furthermore, theinstant charges can only be described as serious; defendant was not incarcerated on the instantcharges prior to his indictment; and defendant failed to establish that his defense was impairedby the delay in prosecution (see id.).
We reject the contention of defendant that he was denied effective assistance of counselbased upon counsel's failure to move to dismiss the indictment on the grounds that the statute oflimitations had expired or that his right to due process, i.e., his constitutional right to a speedytrial, was violated by the delay in commencing the prosecution. "There can be no denial ofeffective assistance of trial counsel arising from counsel's failure to 'make a motion or argumentthat has little or no chance of success' " (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287[2004], rearg denied 3 NY3d 702 [2004]) and, as previously discussed, there was nostatute of limitations or due process violation.
Contrary to defendant's further contentions, the evidence is legally sufficient to support theconviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]) and, viewing theevidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495). Defendant failed to preserve for our reviewhis remaining contention concerning the court's consideration of a pretrial delay issue in theabsence of a motion to dismiss (see CPL 470.05 [2]), and we decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Present—Smith, J.P., Peradotto, Green, Pine and Gorski, JJ.