| People v Chance |
| 2013 NY Slip Op 02263 [105 AD3d 758] |
| April 3, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v James Chance, Also Known as Joseph Jenkins,Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco,Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Zambelli, J.), rendered May 4, 2010, convicting him of burglary in the second degree,grand larceny in the fourth degree, petit larceny, and criminal mischief in the fourthdegree, after a nonjury trial, and imposing sentence.
Ordered that the judgment is affirmed.
"The right to 'prompt prosecution' is equated with the constitutional right to a speedytrial" (People v Miller, 83AD3d 1097, 1097-1098 [2011], quoting People v Decker, 13 NY3d 12, 15 [2009]). "In determiningwhether there has been an undue delay, the court must analyze the same factors as comeinto play in examining whether a defendant has been deprived of his or her constitutionalright to a speedy trial: ' "(1) the extent of the delay; (2) the reason for the delay; (3) thenature of the underlying charge; (4) whether or not there has been an extended period ofpretrial incarceration; and (5) whether or not there is any indication that the defense hasbeen impaired by reason of the delay" ' " (People v Miller, 83 AD3d at 1098,quoting People v Decker, 13 NY3d at 15, quoting People v Taranovich,37 NY2d 442, 445 [1975]). Although the approximately eight-month delay between thediscovery of evidence linking the defendant to the crime and his arrest was to someextent unnecessary, given the severity of the underlying offense, the fact that thedefendant was not incarcerated on the instant charges, and the lack of any prejudice, thedefendant was not deprived of due process (see People v Santos, 303 AD2d 695[2003]). Accordingly, the County Court properly denied that branch of the defendant'somnibus motion which was to dismiss the indictment based on preindictment delay.
The defendant's contention that he was deprived of the effective assistance ofcounsel is based on matter dehors the record, and cannot be reviewed on direct appeal(see People v Thomas, 89AD3d 964, 965 [2011]; People v Rohlehr, 87 AD3d 603 [2011]).
The defendant's contention that the evidence was legally insufficient to support hisconvictions is unpreserved for appellate review, as defense counsel made only a generalmotion for a trial order of dismissal based upon the People's alleged failure to make out aprima facie case (see [*2]CPL 470.05; People v Hawkins, 11 NY3d484, 491-492 [2008]; People v Flowers, 95 AD3d 1233 [2012]). In any event,viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Additionally, in fulfilling our responsibilityto conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the fact-finder'sopportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]). Dillon, J.P., Austin, Sgroi and Cohen, JJ., concur.