Opinion
2013-04-3
The PEOPLE, etc., respondent, v. James CHANCE, also known as Joseph Jenkins, appellant.
Lisa H. Blitman, New York, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco, Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.
Lisa H. Blitman, New York, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco, Steven A. Bender, and Richard Longworth Hecht of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered May 4, 2010, convicting him of burglary in the second degree, grand larceny in the fourth degree, petit larceny, and criminal mischief in the fourth degree, after a nonjury trial, and imposing sentence.
ORDERED that the judgment is affirmed.
“The right to ‘prompt prosecution’ is equated with the constitutional right to a speedy trial” ( People v. Miller, 83 A.D.3d 1097, 1097–1098, 922 N.Y.S.2d 149, quoting People v. Decker, 13 N.Y.3d 12, 15, 884 N.Y.S.2d 662, 912 N.E.2d 1041). In determining whether there has been an undue delay, the court must analyze the same factors as come into play in examining whether a defendant has been deprived of his or her constitutional right to a speedy trial: “ ‘(1) the extent of the delay; (2) the reason for 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. Miller, 83 A.D.3d at 1098, 922 N.Y.S.2d 149, quoting People v. Decker, 13 N.Y.3d at 15, 884 N.Y.S.2d 662, 912 N.E.2d 1041, quoting People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303). Although the approximately eight-month delay between the discovery of evidence linking the defendant to the crime and his arrest was to some extent unnecessary, given the severity of the underlying offense, the fact that the defendant was not incarcerated on the instant charges, and the lack of any prejudice, the defendant was not deprived of due process ( see People v. Santos, 303 A.D.2d 695, 756 N.Y.S.2d 781). Accordingly, the County Court properly denied that branch of the defendant's omnibus motion which was to dismiss the indictment based on preindictment delay.
The defendant's contention that he was deprived of the effective assistance of counsel is based on matter dehors the record, and cannot be reviewed on direct appeal ( see People v. Thomas, 89 A.D.3d 964, 965, 932 N.Y.S.2d 703;People v. Rohlehr, 87 A.D.3d 603, 927 N.Y.S.2d 919).
The defendant's contention that the evidence was legally insufficient to support his convictions is unpreserved for appellate review, as defense counsel made only a general motion for a trial order of dismissal based upon the People's alleged failure to make out a prima facie case ( seeCPL 470.05; People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. Flowers, 95 A.D.3d 1233, 945 N.Y.S.2d 701). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Additionally, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the fact-finder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).