People v Jones

2020 NY Slip Op 05774 [187 AD3d 934]

October 14, 2020

Appellate Division, Second Department

As corrected through Wednesday, December 4, 2019

[*1]

The People of the State of New York,Respondent, v Dency Jones, Appellant.

Paul Skip Laisure, New York, NY (William Kastin of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy FitzpatrickTalcott, and Mariana Zelig of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (BarryKron, J.), rendered December 12, 2018, convicting him of robbery in the first degree, upon hisplea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

In April 2015, several men committed a robbery at a store in Queens while wearing skimasks and gloves and brandishing guns. In addition to stealing money and merchandise from thestore, the perpetrators took three store employees and one customer to a back room, forced themto lie face down on the floor, and directed them to empty their pockets.

In September 2015, the defendant was convicted of robbery in the second degree inconnection with an unrelated robbery and sentenced to a determinate term of imprisonment of31/2 years. As required by his sentence, the defendant submitted a sample of DNAfor inclusion in the New York State DNA Databank. In November 2015, it was discovered thatthe defendant's DNA was a match to a DNA sample recovered from the April 2015 robbery. InJune 2018, after the defendant was released from prison on the unrelated robbery conviction, hewas arrested for the April 2015 robbery and indicted in July 2018. In an omnibus motion, thedefendant moved, inter alia, to dismiss the indictment on the ground that his due process rights toprompt prosecution and a speedy trial were violated by the prosecution's 31-month delay betweendiscovering the DNA evidence linking him to the April 2015 robbery and his arrest. TheSupreme Court denied that branch of the defendant's omnibus motion. The defendant thereafterpleaded guilty to robbery in the first degree and was sentenced.

"The right to 'prompt prosecution' is equated with the constitutional right to a speedy trial"(People v Miller, 83 AD3d1097, 1097-1098 [2011], quoting People v Decker, 13 NY3d 12, 15 [2009]). "The following factorsshould be examined in balancing the merits of an assertion that there has been a denial ofdefendant's right 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 of pretrialincarceration; and (5) whether or not there is any indication that the defense has been impaired byreason of the delay" (People v Taranovich, 37 NY2d 442, 445 [1975]). The court mustanalyze the same factors when determining whether a defendant has been deprived of his or herdue process right to prompt prosecution (see People v Miller, 83 AD3d at 1098).

Although the 31-month delay between the discovery of the DNA evidence linking thedefendant to the crime and his arrest was substantial, given the severity of the underlying offense,combined with the fact that the defendant was not incarcerated on the instant charges and did notsustain any prejudice, the defendant was not deprived of due process (see People v Chance, 105 AD3d758, 758-759 [2013]; People v Romero, 173 AD2d 654 [1991]). Accordingly, weagree with the Supreme Court's denial of that branch of the defendant's omnibus motion whichwas to dismiss the indictment based on preindictment delay. Dillon, J.P., Leventhal, Cohen andHinds-Radix, JJ., concur.