40 Month Pre-Trial Delay Did Not Violate Due Process

In determining a 40-month delay did not deprive defendant his right to due process, the Fourth Department wrote:

In determining whether there has been an undue delay, a court must consider several factors, including “ ‘(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay’ ” (People v Decker, 13 NY3d 12, 15, quoting People v Taranovich, 37 NY2d 442, 445…).

Upon applying the Taranovich factors to the facts before us, we conclude that the delay did not deprive defendant of his right to due process.  We agree with defendant that the rape in the first degree charge “can only be described as serious” … .  Conversely, although the 40-month delay in commencing the prosecution was substantial, it was not per se unreasonable ….  Furthermore, defendant was not incarcerated for an extended period prior to the trial on these charges, and there is no evidence that defendant was prejudiced by the delay in commencing the prosecution.  Finally, the reason for the delay in this case was the police detective’s inability to fully identify and locate defendant.  That excuse was not unreasonable inasmuch as the victim was unable to identify defendant from mug shots or otherwise ascertain which of the 32 men in the Buffalo Police Department’s identification system with defendant’s name was the perpetrator. People v White, 817, 4th Dept 7-19-13