Opinion
No. 215 SSM 44.
Decided December 15, 2009.
APPEAL, by permission of the Chief Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered April 14, 2009. The Appellate Division affirmed a judgment of the Supreme Court, Queens County (Arthur J. Cooperman, J.), which had convicted defendant, upon a jury verdict, of rape in the first degree, sodomy in the first degree (two counts), and robbery in the second degree.
People v Ramos, 61 AD3d 783, affirmed.
Legal Aid Society, Criminal Appeals Bureau, New York City ( William B. Carney and Steven Banks of counsel), for appellant.
Ramon Ramos, appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens ( Rebecca Height of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed.
The prosecution was not barred by the five-year statute of limitations pursuant to CPL 30.10 (2) (b). Although the indictment was nearly 10 years after the incident, defendant's whereabouts were "continuously unknown and continuously unascertainable," despite the reasonable diligence of the detectives assigned to the case, until his DNA profile from the rape kit taken from the victim was matched to DNA evidence taken from defendant pursuant to a subsequent incarceration (CPL 30.10 [a] [ii]; see also Executive Law § 995; § 995-c [3]; People v Seda, 93 NY2d 307, 311; People v Brown, 13 NY3d 332).
Defendant's contentions that the extension of the statute of limitations in this case constituted an ex post facto law and that his sentencing as a persistent felony offender violated his right to due process of law are not preserved for review. Defendant's remaining arguments lack merit.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, in a memorandum.