People v Beliard

People v Beliard 2009 NY Slip Op 07942 [67 AD3d 427] November 5, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

The People of the State of New York, Respondent,
v
Wilkin Beliard, Appellant.

—[*1] Lucas E. Andino, New York, for appellant. Robert M. Morgenthau, District Attorney, New York (Brian E. Rodkey of counsel), for respondent.

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 3½ 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.