PEOPLE v. MAYO (2001)

Judgment, Supreme Court, Bronx County (David Stadtmauer, J. on speedy trial motion;  Edward Davidowitz, J. at jury trial and sentence), rendered June 16, 2000, convicting defendant of manslaughter in the first degree, and sentencing him, as a second felony offender, to a term of 12 1/212 to 25 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis upon which to disturb the jury's determinations concerning credibility and identification.

 Based on the record before us, we cannot conclude that the almost nine-year delay between the date of the homicide and defendant's arrest constituted a violation of defendant's State or Federal due process rights (see, People v. Lesiuk, 81 N.Y.2d 485, 490-491, 600 N.Y.S.2d 931, 617 N.E.2d 1047;  United States v. Lovasco, 431 U.S. 783, 795-796, 97 S.Ct. 2044, 52 L.Ed.2d 752).   Although a delay of this length shifts the burden on the prosecution to establish good cause (see, People v. Singer, 44 N.Y.2d 241, 254, 405 N.Y.S.2d 17, 376 N.E.2d 179), that burden was met by its showing that the principal reason for the delay was the reluctance of a nine-year-old prosecution witness to testify or cooperate, rather than any attempt to gain a tactical advantage (see, People v. McNeill, 204 A.D.2d 975, 613 N.Y.S.2d 302, lv. denied 84 N.Y.2d 829, 617 N.Y.S.2d 149, 641 N.E.2d 170;  see also, People v. Rodriguez, 281 A.D.2d 375, 723 N.Y.S.2d 159).  “[A] determination made in good faith to defer commencement of the prosecution for further investigation or for other sufficient reasons, will not deprive the defendant of due process of law even though the delay may cause some prejudice to the defense.”  (People v. Singer, supra at 254, 405 N.Y.S.2d 17, 376 N.E.2d 179, citing United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752, supra).

 The record fails to support defendant's claim that, in an indirect manner, the People violated CPL 60.35(1) by impeaching their eyewitness.   As the court made clear in its instruction to the jury, which the jury is presumed to have followed (see, People v. Davis, 58 N.Y.2d 1102, 462 N.Y.S.2d 816, 449 N.E.2d 710), the People's cross-examination of a detective, called as a defense witness, regarding an inconsistency in his paperwork constituted impeachment only of the detective.

The testimony elicited from the eyewitness, who at the time of the shooting was nine years old, regarding the statements made to her by her mother and grandmother, revealed her state of mind and explained why she did not come forward until years after her father's murder (see, People v. Wortherly, 68 A.D.2d 158, 163-164, 416 N.Y.S.2d 594). The possibility of any undue prejudice to defendant was obviated by the court's instructions to the jury (see, People v. Young, 266 A.D.2d 93, 698 N.Y.S.2d 643, lv. denied 94 N.Y.2d 927, 708 N.Y.S.2d 366, 729 N.E.2d 1165).

We perceive no basis for reduction of sentence.