        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

817
KA 11-00140
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD WHITE, DEFENDANT-APPELLANT.


HERMAN KAUFMAN, RYE, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     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 entered March 16, 2012, decision was reserved and
the matter was remitted to Supreme Court, Erie County, for further
proceedings (93 AD3d 1181). The proceedings were held and completed.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of rape in the third degree (Penal Law § 130.25
[3]). In a prior determination with respect to this appeal, we
rejected the majority of defendant’s contentions, but concluded that
the record was insufficient to permit us to determine whether he was
denied effective assistance of counsel due to his attorney’s failure
to move to dismiss the indictment on due process grounds, to wit, that
he was denied his constitutional right to a speedy trial (People v
White, 93 AD3d 1181, 1182). Consequently, we held the case, reserved
decision on that issue, and remitted the matter to Supreme Court for
an evidentiary hearing “to determine whether the preindictment delay
deprived defendant of his constitutional rights to a speedy trial and
due process” (id.). Upon reviewing the record from that hearing, we
conclude that defendant was not deprived of due process or his
constitutional right to a speedy trial, and thus his attorney was not
ineffective in failing to move to dismiss the indictment on those
grounds.

     Where a defendant contends that he or she was deprived of the
right to due process by a delay in commencing a prosecution, the
People bear the burden of establishing that there is good cause for
the delay (see People v Singer, 44 NY2d 241, 254). In determining
whether there has been an undue delay, a court must consider several
factors, including “ ‘(1) the extent of the delay; (2) the reason for
                                 -2-                           817
                                                         KA 11-00140

the delay; (3) the nature of the underlying charge; (4) whether or not
there has been an extended period of pretrial incarceration; and (5)
whether or not there is any indication that the defense has been
impaired by reason of the delay’ ” (People v Decker, 13 NY3d 12, 15,
quoting People v Taranovich, 37 NY2d 442, 445; see People v Vernace,
96 NY2d 886, 887).

     Upon applying the Taranovich factors to the facts before us, we
conclude that the delay did not deprive defendant of his right to due
process. We agree with defendant that the rape in the first degree
charge “can only be described as serious” (People v Bradberry, 68 AD3d
1688, 1690, lv denied 14 NY3d 838). Conversely, although the 40-month
delay in commencing the prosecution was substantial, it was not per se
unreasonable (see Decker, 13 NY3d at 15). Furthermore, defendant was
not incarcerated for an extended period prior to the trial on these
charges, and there is no evidence that defendant was prejudiced by the
delay in commencing the prosecution. Finally, the reason for the
delay in this case was the police detective’s inability to fully
identify and locate defendant. That excuse was not unreasonable
inasmuch as the victim was unable to identify defendant from mug shots
or otherwise ascertain which of the 32 men in the Buffalo Police
Department’s identification system with defendant’s name was the
perpetrator.

     Therefore, inasmuch as a motion to dismiss based upon a violation
of defendant’s due process or constitutional speedy trial rights would
not have been successful, defense counsel was not ineffective for
failing to make such a motion (see People v Alger, 23 AD3d 706, 706-
707, lv denied 6 NY3d 845; see generally People v Caban, 5 NY3d 143,
152).




Entered:   July 19, 2013                        Frances E. Cafarell
                                                Clerk of the Court
