PEOPLE v. WING KEUNG TSANG

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. WING KEUNG TSANG, Defendant-Appellant.

Decided: June 19, 2001

ROSENBERGER, J.P., WILLIAMS, TOM, WALLACH and FRIEDMAN, JJ. Mary C. Farrington, for Respondent. Scott B. Tulman, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Dorothy Cropper and Renee White, JJ. at speedy trial proceedings;  William Wetzel, J. at plea and sentence), rendered November 18, 1999, as amended December 9, 1999, convicting defendant of criminally negligent homicide, and sentencing him to a term of 5 months, unanimously affirmed.

Defendant's motion to dismiss the indictment based on pre-indictment delay was properly denied (see, People v. Singer, 44 N.Y.2d 241, 252-255, 405 N.Y.S.2d 17, 376 N.E.2d 179;  People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79, 335 N.E.2d 303).   The delay of more than 20 years in commencement of the prosecution was not designed to gain a tactical advantage (see, People v. Rodriguez, 281 A.D.2d 375, 723 N.Y.S.2d 159;  People v. Jones, 267 A.D.2d 250, 699 N.Y.S.2d 447, lv. denied 94 N.Y.2d 949, 710 N.Y.S.2d 5, 731 N.E.2d 622).   On the contrary, the delay resulted from an inability to locate defendant despite reasonably diligent efforts (see, People v. Suero, 235 A.D.2d 357, 654 N.Y.S.2d 114, lv. denied 89 N.Y.2d 1101, 660 N.Y.S.2d 395, 682 N.E.2d 996).   Defendant hampered the efforts to locate him by failing to appear in court on a pending robbery charge, giving false information about his home and work addresses when arrested on the robbery charge, fleeing to another State and using aliases (see, People v. Prosano, 279 A.D.2d 329, 719 N.Y.S.2d 55;  People v.. O'Gara, 239 A.D.2d 215, 657 N.Y.S.2d 661, lv. denied 90 N.Y.2d 861, 661 N.Y.S.2d 188, 683 N.E.2d 1062).   A balancing of the reason for the delay with all other relevant factors leads to the conclusion that defendant was not entitled to dismissal.   The original charge of murder was extremely serious, defendant was not incarcerated on the instant charges, and there has been no showing of specific prejudice.