The opinion of the court was delivered by: KRAM
MEMORANDUM OPINION AND ORDER
SHIRLEY WOHL KRAM, U.S.D.J.
The above captioned action is before this Court upon petitioner Jorge Tavarez petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Tavarez seeks to overturn his conviction for robbery. Petitioner was convicted by a jury of robbery in the second degree on April 17, 1980, and was sentenced to an indeterminate term of imprisonment up to five years. In his petition, Tavarez raises the following grounds for relief: (1) that a delay of twenty-eight months between the commission of the robbery and the handing down of an indictment against petitioner deprived him of his due process right to a prompt prosecution; (2) that the pre-trial identification proceeding was unduly suggestive; and (3) that the Wade hearing was improperly held, denying Tavarez his due process rights.
Petitioner appealed his conviction to the Appellate Division, First Department, raising the same three grounds for relief cited in petitioner's habeas petition. On April 18, 1982, the Appellate Division unanimously affirmed petitioner's conviction without opinion, and, on May 3, 1982, the New York Court of Appeals denied leave to appeal.
For the following reasons, the Court finds petitioner's claims to be without merit, and therefore denies the petition for habeas corpus.
Petitioner claims that the twenty-eight month delay between the commission of the robbery on December 18, 1975, and his arrest for that robbery on April 12, 1978, constituted a violation of petitioner's right to a speedy trial and a denial of due process.
Petitioner and two other men robbed a plumbing contractor's office and three of its employees (Lionel Selly, Peggy McCook and Hector Rivera) on December 18, 1975. Later that day, the three employees were taken to a police station where they examined hundreds of photographs and identified the petitioner to Detective Carter of the Robbery Squad as a participant in the robbery. Detective Carter determined petitioner's last known address to be an abandoned building. The detective also searched for the petitioner in the area near the crime on numerous occasions, and, on February 11, 1976, issued a "wanted card" for petitioner under the name Jorge Tavarez.
Petitioner was arrested almost one year later on December 31, 1976 on an unrelated weapons charge, under the name "Jose De Los". Despite the difference in nomenclature, "Jose De Los" was identified by the Bureau of Criminal Investigation ("BCI") as Jorge Tavarez. According to the BCI's records, on January 3, 1977, the Wanted Card unit of the BCI informed the Robbery Squad, by telephone, that defendant had been arrested. The Robbery Squad has no record of receiving that information, and no action was taken on it.
On March 24, 1978, petitioner was arrested again. He was charged with a misdemeanor and a traffic violation under the name "Francisco Marine". Petitioner was again identified by the Wanted Card unit of the BCI which, on April 5, 1978, notified the Robbery Squad of petitioner's arrest. Detective Carter, acting upon that notice, arrested petitioner for the December 1975 robbery when petitioner appeared in court on April 12, 1978. petitioner was indicted on April 21, and arraigned on May 11, 1978. Petitioner did not move to dismiss the indictment against him for lack of speedy prosecution until August 10, 1979, fifteen months after his arraignment.
The Court finds that petitioner's right to a prompt prosecution was not violated.
As a preliminary matter, the Court notes that the Sixth Amendment speedy trial provision does not engage until someone is "accused" -- that is, until a formal indictment or information is handed down or an actual arrest is made. United States v. Marion, 404 U.S. 307, 313, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971). The period of delay between the commission of a wrongful act and the discovery and arrest of its perpetrator is primarily controlled not by the Sixth Amendment, but by the statute of limitations applicable to the Particular offense. United States v. Ewell, 383 U.S. 116, 122, 15 L. Ed. 2d 627, 86 S. Ct. 773 (1966). See Toussie v. United States, 397 U.S. 112, 114-15, 25 L. Ed. 2d 156, 90 S. Ct. 858 (1970); United States v. Feinberg, 383 F.2d 60, 65 (2d Cir. 1967), cert. denied, 389 U.S. 1044, 19 L. Ed. 2d 836, 88 S. Ct. 788 (1968). In this case, a five-year statute of limitations applies -- over double the period which elapsed between the commission of the robbery and petitioner's arrest.
Petitioner claims, however, that the prosecution's neglect and inadvertence in failing to effect a timely arrest is "inexcusable" and mandates the granting of his habeas petition. The Court finds that even if the pre-arrest delay was "unjustifiable or unnecessary" -- which is not the case here -- petitioner's conviction would not be invalidated absent a showing of prejudice caused by the delay. Feinberg, supra, 383 F.2d at 67. The Second Circuit and the New York Court of Appeals essentially employ the same standard for ascertaining whether a delay has violated a defendant's right to a speedy trial. Generally, this Court will consider:
the length of the delay, the reason for it, the extent of the prejudice, and whether or not the defendant has made a ...