Opinion
January 25, 1988
Appeal from the Supreme Court, Queens County (Cooperman, J., Chetta, J.).
Ordered that the judgment is affirmed.
We find unpersuasive the defendant's claim that the approximately 28-month hiatus between his commission of the instant offenses and his arrest violated his right to due process and requires dismissal of the indictment. The uncontroverted hearing testimony demonstrates that neither the complainant nor the three eyewitnesses to the crime was willing to participate in its investigation by the police, and all failed to comply with the investigating detective's repeated requests that they report to the precinct and look through police department photographs in order to identify the assailant. Moreover, it is undisputed that shortly after the investigation commenced, the complainant informed the detective that he "didn't want to pursue the matter any further" and wanted the investigation discontinued. Hence, it is clear that the police were unaware of the defendant's identity and had no evidence upon which to prosecute him until the complainant subsequently identified him and he was arrested more than two years after the crime. Under these circumstances, the prosecution established that the failure to procure the defendant's arrest more promptly was entirely reasonable and was supported by good cause (see, People v Singer, 44 N.Y.2d 241; People v Staley, 41 N.Y.2d 789; People v Brown, 124 A.D.2d 667, lv denied 69 N.Y.2d 825, lv denied sub nom. People v Shabazz, 69 N.Y.2d 833; People v Hoff, 110 A.D.2d 782). Additionally, the serious nature of the instant offenses and the absence of any actual prejudice suffered by the defendant further militate against his present contention (see, People v Fuller, 57 N.Y.2d 152; People v Bonsauger, 91 A.D.2d 1001; People v Bryant, 65 A.D.2d 333, appeal dismissed 46 N.Y.2d 1037).
Similarly unavailing is the defendant's contention that he should be permitted to reopen the pretrial hearing and adduce additional evidence in support of his due process claim in light of the trial testimony of the complainant and the eyewitnesses concerning their alleged cooperation with the investigation. Initially, we note that despite having ample opportunity to do so, trial counsel never sought to reopen the hearing and instead apparently elected as a matter of strategy to attempt to cast aspersions on the credibility of the witnesses by calling the investigating detective as a defense witness at trial (see generally, People v Ortiz, 120 A.D.2d 550, lv denied 68 N.Y.2d 671). In any event, the defendant was not denied a full opportunity to present evidence at the hearing by any ruling of the court; hence, he is not entitled to a second chance to sustain his claim by eliciting additional evidence which he previously failed to pursue (see, People v Quarles, 63 N.Y.2d 923; People v Havelka, 45 N.Y.2d 636; People v Bryant, 37 N.Y.2d 208).
We have considered the defendant's remaining contentions, including his claim that his sentence was excessive, and find them to be without merit. Mangano, J.P., Brown, Rubin and Harwood, JJ., concur.