Opinion
10105
January 16, 2003.
Appeal from a judgment of the County Court of Greene County (Lalor, J.), rendered June 10, 1997, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.
Greg D. Lubow, Public Defender, Catskill, for appellant.
Terry J. Wilhelm, District Attorney, Catskill (Dominic J. Cornelius of counsel), for respondent.
Before: Cardona, P.J., Mercure, Spain and Kane, JJ.
MEMORANDUM AND ORDER
On July 24, 1996, defendant was indicted for criminal possession of a controlled substance in the third degree (two counts) stemming from two sales of cocaine on September 13, 1995, in the Village of Catskill, Greene County. The monitored sales were made to the same undercover police officer from the State Police. Defendant was arraigned on August 5, 1996.
Thereafter, following a hearing, County Court denied defendant's motions to dismiss the indictment on the ground that his constitutional due process rights were violated due to the People's preindictment delay, and to preclude the People from offering identification evidence based upon their failure to serve a timely statutory notice of their intent to offer same (see CPL 710.30). Subsequently, defendant moved for a Wade hearing, however, just prior to that hearing, he entered a guilty plea to one count of criminal possession of a controlled substance in the third degree and waived his right to appeal for an agreed-upon prison sentence of 3 to 9 years.
Initially, by pleading guilty, defendant forfeited his right to appellate review of his claim concerning the People's failure to serve a CPL 710.30 notice (see People v. Taylor, 65 N.Y.2d 1; People v. Jackson, 245 A.D.2d 964, lv denied 91 N.Y.2d 926). We also find that defendant is precluded from seeking review of his challenge to the admissibility of the identification testimony as unnecessarily suggestive. By pleading guilty before he obtained a final order denying his motion to preclude, he forfeited his right to appeal that issue under the statutory exception provided in CPL 710.70(2) (see People v. Fernandez, 67 N.Y.2d 686, 688; People v. Whitehurst, 291 A.D.2d 83, 86-87, lv denied 98 N.Y.2d 642; People v. Sides, 242 A.D.2d 750, 750-751, lv denied 91 N.Y.2d 836).
Addressing defendant's contention that the 10-month delay between the date of the crime and the date of the indictment violated his constitutional right to due process, we initially note that appellate review of this issue is not precluded by his guilty plea (see People v. Diaz, 277 A.D.2d 723, 724, lv denied 96 N.Y.2d 758; People v. Gallup, 224 A.D.2d 838; see also People v. Fuller, 57 N.Y.2d 152, 159 n 7). Therefore, turning to the merits, it has been held that in determining whether a defendant's due process right to prompt prosecution has been violated, we consider five factors, "namely, the extent of the delay, the reason for the delay, the nature of the underlying charge, whether there has been an extended period of incarceration and whether there is any indication that the defense has been impaired by reason of the delay" (People v. Brown, 243 A.D.2d 750, 751; see People v. Taranovich, 37 N.Y.2d 442, 445; People v. Mangan, 258 A.D.2d 819, 819, lv denied 93 N.Y.2d 927). Here, although the People have failed to establish a reason for the delay, the crime, a class B felony, is very serious, defendant was not incarcerated during the delay and has failed to demonstrate that his defense was impaired because of the delay. Notably, defendant does not claim that the delay deprived him of the opportunity to determine the existence of any exculpatory witnesses (compare People v. Townsend, 270 A.D.2d 720). His assertion that his memory of what happened on September 13, 1995 was impaired by the delay, depriving him of potentially exculpatory information, is unpersuasive in light of his admission at the hearing that he could not recall events that occurred even one month before he was indicted. Upon balancing the five factors, we conclude that the delay was not so protracted as to violate defendant's due process rights. Delays similar to the 10-month delay herein have been found not to violate due process (see People v. Allah, 264 A.D.2d 902, 902-903 [nine-month delay]; People v. Cooper, 258 A.D.2d 815, 815-816 [seven-month delay], lv denied 93 N.Y.2d 1016;People v. Mangan, supra [20-month delay]), "particularly where, as here, the indictment is well within the statutory period of limitations" (People v. Allah, supra at 903; see People v. Torres, 257 A.D.2d 772, 773, lv denied 93 N.Y.2d 903). Accordingly defendant's motion to dismiss the indictment on this basis was properly denied.
Criminal possession of a controlled substance in the third degree is a class B felony with a statute of limitations of five years (see Penal Law § 220.16; CPL 30.10 [2])
Mercure, Spain and Kane, JJ., concur.
ORDERED that the judgment is affirmed.