Opinion
May 13, 1971
Appeal by the defendant from a judgment of conviction of the County Court of Ulster County, rendered April 16, 1970, upon a jury verdict of guilty of the crimes of criminally selling and possessing dangerous drugs. The defendant was convicted as a result of an investigation by an undercover State policeman who testified at the trial that on December 5, 1968 he purchased four glassine envelopes from the defendant; on December 6, 1968 he purchased an envelope which purportedly contained marijuana from the defendant; and on December 17, 1968 he purchased two glassine envelopes and a tin foil packet from the defendant. The said items were turned over to another member of the State Police. He testified he took the items to the State Police Laboratory. A chemist testified that the items contained marijuana, heroin and cocaine. The defendant was indicted on January 29, 1969 for the commission of the said alleged crimes, was arrested on April 19, and arraigned on April 21, 1969. The trial of the indictments here concerned commenced on March 23, 1970. The defendant did not testify in his own behalf or call any witnesses. On the appeal he alleges three errors: (1) the four-month delay between the crimes charged and his arrest was an undue delay and prejudicial to his rights; (2) the delay of 14 months between the indictment and the actual trial deprived him of a speedy trial sufficient to require dismissal of the indictment; and (3) identification. With reference to the alleged error of undue pre-arrest delay the issue does not appear to have been decided by the courts of this State. The defendant placed his reliance upon Godfrey v. United States ( 358 F.2d 850); Ross v. United States ( 349 F.2d 210); and People v. Hernandez ( 170 N.W.2d 851 [Mich.]). The issue was first raised by motion prior to the commencement of the trial when the attorney for the defendant stated: because of the lengthy delay "there was substantial prejudice, there was loss of witnesses, there was loss of memory and recollection", and a similar motion was made at the end of the People's case. This court finds the cases relied upon by the defendant not controlling or persuasive. The issue on this appeal is whether or not under the circumstances the court should have had a hearing to determine whether any prejudice resulted from the delay. It should first be observed that the mere allegation by the defense attorney is insufficient to compel the court to grant a hearing. Counsel should have set forth in detail what witnesses were lost and in what respect the defendant was suffering from a loss of memory and recollection. If it was to be assumed that such unsupported allegations raised issues sufficient to require a hearing it was nevertheless properly denied because under the circumstances a four-month delay was not prejudicial as a matter of law (see People v. Henderson, 20 N.Y.2d 303; People v. Wallace, 26 N.Y.2d 371). In our opinion the delay was not sufficient to constitute a denial of due process or a violation of the defendant's constitutional rights. The defendant further alleges that the post-indictment delay of approximately 14 months denied him his right to a speedy trial. However, the record establishes that during a period of approximately 11 of the said 14 months the defendant was involved in the trial and other criminal proceedings. It further appears that the delay was not caused by the prosecution. The defendant has failed to demonstrate that the 14 months' delay was due to the failure of the People and as a consequence he has not sustained his burden of proof by showing prejudice. (See People v. White, 2 N.Y.2d 220; People v. Abbatiello, 30 A.D.2d 11. ) Finally, the defendant claims that there was not proper identification but the record demonstrates that the undercover policeman referred to the person from whom the narcotics were purchased "as the defendant" and sufficiently identified him. There was no challenge to the identification on a cross-examination of any of the People's witnesses or by the introduction of any contradictory evidence. The jury having determined from the evidence that the defendant was the person who sold and possessed the narcotics, there is proof to sustain such finding beyond a reasonable doubt. We have examined the records for other alleged errors and find none which would be sufficient to be the basis for a new trial. The defendant had a fair and impartial trial and it does not appear that any of the constitutional rights of the defendant were impaired in the course of the proceedings of this case. Judgment affirmed. Herlihy, P.J., Staley, Jr., Cooke, Sweeney and Simons, JJ., concur.