December 15, 2009
THE PEOPLE &C., RESPONDENT,
RAMON RAMOS, APPELLANT.
This memorandum is uncorrected and subject to revision before publication in the New York Reports.
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 ; People v Seda, 93 NY2d 307, 311 ; People v Brown, __ NY3d __, 2009 Slip Op 08475 ).
Defendant's contentions that the extension of the statute of limitation 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, order affirmed, in a memorandum. Chief Judge Lippman and Judges Ciparick,
Graffeo, Read, Smith, Pigott and Jones concur.
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