         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1494
KA 08-01563
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DENNIS DONAHUE, ALSO KNOWN AS DENNIS DONOHUE,
DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Sheila A.
DiTullio, J.), rendered June 30, 2008. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of murder in the second degree (Penal Law § 125.25 [1]),
defendant contends that County Court erred in refusing to grant his
motions for a mistrial based on the effect of media coverage of the
case upon prospective jurors. He further contends that the court
erred in denying his requests for an adjournment to allow the media
coverage to subside and for a stay of the proceedings to enable him to
move again for a change in venue. We reject defendant’s contentions.
The court properly determined that the prospective jurors’ exposure to
news accounts did not warrant a mistrial or an adjournment, nor did
such exposure warrant a stay of the proceedings to enable defense
counsel to move again for a change of venue (see generally People v
Matt, 78 AD3d 1616; People v Fernandez, 269 AD2d 167, lv denied 95
NY2d 796). Contrary to the further contention of defendant, he was
not deprived of meaningful representation based on defense counsel’s
failure to renew defendant’s motion for a change of venue after
defense counsel’s request for a stay of the proceedings was denied,
inasmuch as defendant failed to establish that such a motion, if made,
would have been successful (see generally People v Borcyk, 60 AD3d
1489, 1490, lv denied 12 NY3d 923).

     Defendant failed to preserve for our review his contention that
the court erred in denying his challenge for cause to a prospective
juror based on the alleged failure of the prospective juror to
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                                                         KA 08-01563

understand the burden of proof (see generally People v Chatman, 281
AD2d 964, lv denied 96 NY2d 899). In any event, “[a]ny alleged error
on County Court’s part was cured when defendant was granted two extra
peremptory challenges during a meaningful point in the jury selection
process,” thus enabling defendant to exercise a peremptory challenge
with respect to that prospective juror (People v Miles, 55 AD3d 955,
955, lv denied 11 NY3d 928; see People v Johnson, 265 AD2d 930, 931,
lv denied 94 NY2d 921).

     Contrary to the contention of defendant, his constitutional right
to due process was not violated by the 14-year delay between the death
of the victim and the date on which he was indicted. We note at the
outset that the 14-year delay “does not, by itself, require dismissal
of the indictment” (People v Hayes, 39 AD3d 1173, 1174, lv denied 9
NY3d 923). Rather, in determining whether a preindictment delay was
unreasonable, we must examine the factors set forth in People v
Taranovich (37 NY2d 442, 445), including “the reason for the delay
[and] the nature of the underlying charge” (Hayes, 39 AD3d at 1174).
Here, the People established good cause for the delay by demonstrating
that defendant was not a person of interest in the investigation
before the year 2007. Indeed, they established that they lacked
sufficient evidence to charge defendant until September 2007, at which
time defendant agreed to provide a sample of his DNA and his DNA
matched DNA samples taken from the victim’s fingernails (see People v
Bradberry, 68 AD3d 1688, 1689-1690, lv denied 14 NY3d 838; see
generally People v Decker, 13 NY3d 12, 14-16). Finally, we note that
the underlying charge was murder in the second degree, “inarguably a
very serious offense” (Decker, 13 NY3d at 15), and that is another
factor to consider in determining whether the preindictment delay was
reasonable (see Hayes, 39 AD3d at 1174).

     We reject the contention of defendant that the court erred in
denying his Batson challenge with respect to the prosecutor’s use of
peremptory challenges to three male prospective jurors. Defendant
failed to present “facts and other relevant circumstances sufficient
to raise an inference that the prosecution used its peremptory
challenges” in a discriminatory manner (People v Childress, 81 NY2d
263, 266; see generally Batson v Kentucky, 476 US 79, 93-94).
“Specifically, defense counsel did not compare the challenged jurors
to similarly-situated unchallenged prospective jurors, point to
factors in the challenged jurors’ background that made them likely to
be pro-prosecution, or enunciate any factor that suggested that the
prosecutor exercised the challenges due to the prospective jurors’
gender” (People v MacShane, 11 NY3d 841, 842; see People v Hecker, ___
NY3d ___, ___ [Nov. 30, 2010]).

     Contrary to defendant’s contention, the evidence is legally
sufficient to support the conviction (see generally People v Bleakley,
69 NY2d 490, 495). Also contrary to defendant’s contention, viewing
the evidence in light of the elements of the crime of murder as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict is not against the weight of the evidence
(see generally Bleakley, 69 NY2d at 495). The sentence is not unduly
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                                                        KA 08-01563

harsh or severe. We have reviewed defendant’s remaining contentions
and conclude that they are without merit.




Entered:   February 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
