PEOPLE v. KEATING (2020)

DECISION & ORDER

ORDERED that the judgment is affirmed.

We agree with the Supreme Court's denial of the defendant's motion to dismiss the indictment on the ground that he was denied his right to a speedy trial and his due process right to prompt prosecution.  “A defendant's right to a speedy trial is guaranteed both by the United States Constitution (see U.S. Const 6th, 14th Amends;  Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 18 L.Ed.2d 1), and by statute (see CPL 30.20[1];  Civil Rights Law § 12)” (People v. Walton, 168 A.D.3d 1103, 1105, 92 N.Y.S.3d 390).  “Although an unjustified delay in prosecution will deprive a defendant of the State constitutional right to due process (see N.Y. Const, art I, § 6;  People v. Decker, 13 N.Y.3d 12, 14, 884 N.Y.S.2d 662, 912 N.E.2d 1041;  People v. Staley, 41 N.Y.2d 789, 791, 396 N.Y.S.2d 339, 364 N.E.2d 1111), ‘a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant’ ” (People v. Walton, 168 A.D.3d at 1105, 92 N.Y.S.3d 390, quoting People v. Vernace, 96 N.Y.2d 886, 888, 730 N.Y.S.2d 778, 756 N.E.2d 66).  “In determining whether a defendant's constitutional right to a speedy trial has been violated, the Court of Appeals has articulated five factors to be considered:  (1) the extent of the delay;  (2) the reason for the delay;  (3) the nature of the underlying charges;  (4) any extended period of pretrial incarceration;  and (5) any impairment of the defendant's defense” (People v. Metellus, 157 A.D.3d 821, 823, 69 N.Y.S.3d 713;  see People v. Romeo, 12 N.Y.3d 51, 55, 876 N.Y.S.2d 666, 904 N.E.2d 802).

Here, the Supreme Court appropriately balanced the requisite factors in denying the defendant's motion to dismiss the indictment.  Although there was an extensive delay of approximately 82 months between the murder of the victim and the indictment, the People established good cause for the delay, as a significant amount of the pre-indictment delay was attributable to an investigation to gather sufficient evidence to prosecute the defendant (see People v. Walton, 168 A.D.3d at 1105, 92 N.Y.S.3d 390;  People v. Mattison, 162 A.D.3d 905, 906, 79 N.Y.S.3d 274).  Moreover, while there was an extensive delay of approximately 104 months between the indictment and the defendant's arrest in Jamaica, this delay was attributable in part to the defendant's own conduct in leaving the United States, requiring his extradition (see People v. Barba, 135 A.D.3d 950, 951, 23 N.Y.S.3d 381;  cf. People v. Romeo, 12 N.Y.3d at 56–57, 876 N.Y.S.2d 666, 904 N.E.2d 802).  The People established that the post-indictment delay was attributable to continued efforts to extradite the defendant, which were hindered by circumstances including the retirements and leaves of absence of various detectives overseeing the case.  Moreover, while the lengthy delay is relevant to the consideration of prejudice suffered by the defendant from said delay, the defendant failed to demonstrate specific impairment to his defense (see People v. Wiggins, 31 N.Y.3d 1, 18–19, 72 N.Y.S.3d 1, 95 N.E.3d 303), the defendant was not incarcerated during any portion of the pre-indictment or post-indictment delay, and the nature of the charge, murder in the second degree, was very serious (see People v. Walton, 168 A.D.3d at 1105–1106, 92 N.Y.S.3d 390;  People v. Vernace, 274 A.D.2d 595, 597, 711 N.Y.S.2d 492, affd 96 N.Y.2d 886, 730 N.Y.S.2d 778, 756 N.E.2d 66).  Accordingly, we agree with the Supreme Court's determination to deny the defendant's motion to dismiss the indictment.

The defendant's contention that the evidence was legally insufficient to support his conviction because the prosecution failed to establish his identity as the perpetrator of the crime is unpreserved for appellate review (see CPL 470.05[2];  People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;  People v. Davidson, 150 A.D.3d 1142, 1143, 55 N.Y.S.3d 357).  In any event, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish his identity as the perpetrator beyond a reasonable doubt.  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury'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;  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).

The defendant's contention that the trial court erred by failing to charge the jury regarding the weakness of evidence of flight as consciousness of guilt is unpreserved for appellate review (see CPL 470.05[2]).  In any event, such a charge was not warranted because the People never argued that the defendant's flight evinced a consciousness of guilt (see People v. Valerio, 70 A.D.3d 869, 870, 894 N.Y.S.2d 157;  People v. Rodriguez, 135 A.D.2d 586, 588, 521 N.Y.S.2d 800).

The defendant's contentions that certain remarks the prosecutor made on summation were improper are largely unpreserved for appellate review (see CPL 470.05[2];  People v. Willis, 165 A.D.3d 984, 985, 85 N.Y.S.3d 230).  In any event, the challenged remarks either were responsive to defense counsel's summation, constituted fair comment on the evidence, or otherwise do not warrant reversal (see People v. Brooks, 165 A.D.3d 1280, 84 N.Y.S.3d 789;  People v. Carter, 152 A.D.3d 786, 56 N.Y.S.3d 471).

The defendant was not deprived of the effective assistance of counsel (see People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

BALKIN, J.P., LEVENTHAL, MILLER and CHRISTOPHER, JJ., concur.