| People v Allen |
| 2015 NY Slip Op 08850 [134 AD3d 730] |
| December 2, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Carl Allen, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (De Nice Powell of counsel), for appellant.
Daniel L. Master, Jr., Acting District Attorney, Staten Island, N.Y. (Morrie I.Kleinbart and Anne Grady of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County(Collini, J.), rendered January 10, 2013, convicting him of murder in the second degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
A defendant's right to a speedy trial is guaranteed both by the United StatesConstitution (see US Const 6th, 14th Amends; Klopfer v North Carolina,386 US 213 [1967]), and by statute (see CPL 30.20 [1]; Civil Rights Law§ 12). Moreover, an unjustified delay in prosecution will deprive adefendant of the state constitutional right to due process (see NY Const, art I,§ 6; People vDecker, 13 NY3d 12, 14 [2009]; People v Staley, 41 NY2d 789, 791[1977]). However, "a determination made in good faith to delay prosecution forsufficient reasons will not deprive defendant of due process even though there may besome prejudice to defendant" (People v Vernace, 96 NY2d 886, 888 [2001];see People v Decker, 13 NY3d at 14). Where there has been extended delay, thePeople have the burden to establish good cause (see People v Decker, 13 NY3dat 14; People v Singer, 44 NY2d 241, 254 [1978]).
In determining whether a defendant's constitutional right to a speedy trial has beenviolated, the Court of Appeals has articulated five factors to be considered: (1) the extentof the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) anyextended period of pretrial incarceration; and (5) any impairment of the defendant'sdefense (see People vRomeo, 12 NY3d 51, 55 [2009]; People v Taranovich, 37 NY2d 442,445 [1975]; see also Moore v Arizona, 414 US 25, 26 [1973]; Barker vWingo, 407 US 514, 533 [1972]). These factors apply as well to the due processguarantee (see People v Decker, 13 NY3d at 15; People v Vernace, 96NY2d at 887; People v Staley, 41 NY2d at 792). "In this State, 'we have neverdrawn a fine distinction between due process and speedy trial standards' when dealingwith delays in prosecution" (People v Vernace, 96 NY2d at 887, quotingPeople v Singer, 44 NY2d at 253).
Here, the Supreme Court appropriately balanced the requisite factors and properlydenied, without a hearing, the defendant's motion pursuant to CPL 30.20 to dismiss theindictment on the ground that he was denied his right to a speedy trial and his dueprocess right to prompt [*2]prosecution. While there wasan extensive delay of more than seven years between the defendant's arrest and hisindictment, the Supreme Court properly determined that the People met their burden ofdemonstrating good cause for the delay, during which further investigation wasconducted (see People v Decker, 13 NY3d at 14; People v Denis, 276AD2d 237, 248 [2000]; People v LaRocca, 172 AD2d 628 [1991]; cf.Doggett v United States, 505 US 647, 652-653 [1992]; People v Staley, 41NY2d at 792). Moreover, the nature of the charge was very serious, the defendant wasincarcerated on this charge for only six days before his indictment, which period wasconcurrent with his incarceration on an unrelated charge, and the defendant failed todemonstrate significant prejudice from the delay (see People v Vernace, 96 NY2dat 888; People v Fuller, 57 NY2d 152, 160 [1982]; People v Taranovich,37 NY2d at 445-446; People v Bryant, 65 AD2d 333, 337 [1978]).
The Supreme Court providently exercised its discretion in questioning prospectivejurors about their potential exposure to certain news articles concerning the case whichwere brought into court by one prospective juror, and in denying the defendant'sapplication to discharge the entire jury panel (see People v Shulman, 6 NY3d 1, 32 [2005]; People vMoore, 42 NY2d 421, 433-434 [1977]). The defendant was not deprived of his rightto a fair trial by an impartial jury (see People v Shulman, 6 NY3d at 32).
Defense counsel's failure to exercise a peremptory challenge against a certain jurordid not constitute ineffective assistance of counsel (see People v Barboni, 21 NY3d 393, 406 [2013];People v Benevento, 91 NY2d 708, 712 [1998]). Mastro, J.P., Leventhal, Romanand Barros, JJ., concur.