| People v Theiss (Wayne) |
| 2009 NY Slip Op 50917(U) [23 Misc 3d 138(A)] |
| Decided on May 11, 2009 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from a judgment of the Justice Court of the Town of Wappinger, Dutchess County
(Carl Wolfson, J.), rendered February 7, 2008. The judgment convicted defendant, upon his plea
of guilty, of endangering the welfare of an incompetent or physically disabled person and
sentenced him to one year's imprisonment.
Judgment of conviction affirmed.
Defendant was convicted, upon his plea of guilty, of endangering the welfare of an
incompetent or physically disabled person (Penal Law § 260.25). Defendant asserts that the
accusatory instrument should have been dismissed because the 24-month pre-
arrest delay deprived him of due process. In order to determine whether defendant's due
process rights were violated, the following factors must be considered: "the extent of the delay . .
. the reasons for the delay, the nature of the underlying charge, whether there has been an
extended period of pretrial incarceration, and whether there is any indication that the defense has
been impaired by reason of the delay" (People v Vernace, 96 NY2d 886, 887 [2001]).
After considering the aforementioned factors, we conclude that the 24-month delay between the
commission of the crime and defendant's arrest did not deprive him of due process. We note that
where, as here, a determination is made in good faith to defer commencement of the prosecution
for further investigation, a defendant will not have been deprived of due process of law even
though the delay may have caused some prejudice to his defense (People v Singer, 44
NY2d 241, 254 [1978]).
Turning to defendant's contention that the sentence imposed was harsh and excessive, we find that he has no basis to complain, since he pleaded guilty with the understanding that he might receive the sentence that was thereafter imposed (see People v Kazepis, 101 AD2d 816 [*2][1984]; People v Dasilva, 21 Misc 3d 141[A], 2008 NY Slip Op 52374[U] [App Term, 9th and 10th Jud Dists 2008]). In any event, we find that the sentence imposed was not unduly harsh or excessive (see People v Suitte, 90 AD2d 80 [1982]).
Accordingly, the judgment of conviction is affirmed.
Rudolph, P.J., Tanenbaum and Scheinkman, JJ., concur.
Decision Date: May 11, 2009