| People v White |
| 2013 NY Slip Op 05425 [108 AD3d 1236] |
| July 19, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vRonald White, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski,A.J.), rendered December 14, 2010. The appeal was held by this Court by order enteredMarch 16, 2012, decision was reserved and the matter was remitted to Supreme Court,Erie County, for further proceedings (93 AD3d 1181 [2012]). The proceedings were heldand completed.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of rape in the third degree (Penal Law § 130.25 [3]). In a priordetermination with respect to this appeal, we rejected the majority of defendant'scontentions, but concluded that the record was insufficient to permit us to determinewhether he was denied effective assistance of counsel due to his attorney's failure tomove to dismiss the indictment on due process grounds, to wit, that he was denied hisconstitutional right to a speedy trial (People v White, 93 AD3d 1181, 1182[2012]). Consequently, we held the case, reserved decision on that issue, and remitted thematter to Supreme Court for an evidentiary hearing "to determine whether thepreindictment delay deprived defendant of his constitutional rights to a speedy trial anddue process" (id.). Upon reviewing the record from that hearing, we concludethat defendant was not deprived of due process or his constitutional right to a speedytrial, and thus his attorney was not ineffective in failing to move to dismiss theindictment on those grounds.
Where a defendant contends that he or she was deprived of the right to due processby a delay in commencing a prosecution, the People bear the burden of establishing thatthere is good cause for the delay (see People v Singer, 44 NY2d 241, 254[1978]). In determining whether there has been an undue delay, a court must considerseveral factors, including " '(1) the extent of the delay; (2) the reason for the delay; (3)the nature of the underlying charge; (4) whether or not there has been an extended periodof pretrial incarceration; and (5) whether or not there is any indication that the defensehas been impaired by reason of the delay' " (People v Decker, 13 NY3d 12, 15 [2009], quotingPeople v Taranovich, 37 NY2d 442, 445 [1975]; see People v Vernace,96 NY2d 886, 887 [2001]).
Upon applying the Taranovich factors to the facts before us, we concludethat the delay did not deprive defendant of his right to due process. We agree withdefendant that the rape in [*2]the first degree charge "canonly be described as serious" (People v Bradberry, 68 AD3d 1688, 1690 [2009], lvdenied 14 NY3d 838 [2010]). Conversely, although the 40-month delay incommencing the prosecution was substantial, it was not per se unreasonable (seeDecker, 13 NY3d at 15). Furthermore, defendant was not incarcerated for anextended period prior to the trial on these charges, and there is no evidence thatdefendant was prejudiced by the delay in commencing the prosecution. Finally, thereason for the delay in this case was the police detective's inability to fully identify andlocate defendant. That excuse was not unreasonable inasmuch as the victim was unableto identify defendant from mug shots or otherwise ascertain which of the 32 men in theBuffalo Police Department's identification system with defendant's name was theperpetrator.
Therefore, inasmuch as a motion to dismiss based upon a violation of defendant'sdue process or constitutional speedy trial rights would not have been successful, defensecounsel was not ineffective for failing to make such a motion (see People v Alger, 23 AD3d706, 706-707 [2005], lv denied 6 NY3d 845 [2006]; see generally People v Caban,5 NY3d 143, 152 [2005]). Present—Scudder, P.J., Smith, Fahey, Carni andSconiers, JJ.