People v. Beliard

67 A.D.3d 427, 888 N.Y.S.2d 814

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 5, 2009
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered October 31, 2007, convicting defendant, upon his plea of guilty, of attempted rape in the first degree, and sentencing him to a term of 3Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered October 31, 2007, convicting defendant, upon his plea of guilty, of attempted rape in the first degree, and sentencing him to a term of 31/2 years, unanimously affirmed.

The court properly denied defendant’s motion to dismiss the indictment based on preindictment delay (see People v Singer, 44 NY2d 241 [1978]; People v Taranovich, 37 NY2d 442, 445 [1975]). Although the five-year delay was significant, the crime was very serious, the absence of prejudice to defendant was demonstrated by his statements acknowledging his memory of the event as well as by the conclusiveness of the DNA evidence linking him to the crime, and the delay in arresting him was inadvertent rather than designed to obtain a tactical advantage. The primary cause of the delay was defendant’s flight to another country, and the inability of the police to locate him more promptly was satisfactorily explained (see People v Suero, 235 AD2d 357 [1997], lv denied 89 NY2d 1101 [1997]). Concur— Mazzarelli, J.P, Andrias, Friedman, Nardelli and Moskowitz, JJ.