Appeal from a judgment of the Justice Court of the Town of Haverstraw, Rockland County (Peter J. Branti, J.), rendered October 22, 2009. The judgment convicted defendant, after a nonjury trial, of endangering the welfare of a child and two counts of sexual abuse in the third degree.

ORDERED that the judgment of conviction is affirmed.

Following a nonjury trial, defendant was convicted of endangering the welfare of a child (Penal Law § 260.10 [1]) and two counts of sexual abuse in the third degree (Penal Law § 130.55). On appeal, defendant contends that the delay in his prosecution violated his due process and constitutional speedy trial rights, and that he was denied his federal and state constitutional rights to the effective assistance of counsel.

While defendant made a pretrial motion to dismiss invoking statutory readiness grounds (CPL 30.30), the substance of his argument effectively sought constitutional speedy trial protection. Indeed, both the People's opposition papers and the Justice Court's decision evaluated defendant's argument as though it were a constitutional claim. Thus, defendant's constitutional argument is a part of the record and reviewable on appeal.

In the State of New York, a defendant's due process right to prompt prosecution and constitutional speedy trial right are evaluated using the same factors (People v Decker, 13 NY3d 12, 15 [2009]; People v Vernace, 96 NY2d 886, 887 [2001]; People v Staley, 41 NY2d 789, 792 [1977]; People v Miller, 83 AD3d 1097 [2011]; see People v Taranovich, 37 NY2d 442, 445 [1975]). Application of the factors set forth in People v Taranovich - - (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether there has been an extended period of pretrial incarceration; and (5) whether the defense has been impaired by reason of the delay - - establishes that defendant was not subject to an undue delay in prosecution. There is no fixed time period of delay in prosecution which is "per se unreasonable" (see People v Decker, 13 NY3d at 15, citing People v Romeo, 12 NY3d 51, 56 [2009]). The record establishes that defendant was responsible for much of the pretrial delay due to the extensive pretrial motion practice (see People v Kreinen, 2002 NY Slip Op 40359[U] [*2]
[App Term, 9th & 10th Jud Dists [2002]). Defendant has not demonstrated that he was impaired by the delay. Moreover, the sensitive nature of the charges, which involve the sexual abuse of a child, and the fact that defendant was never incarcerated before trial, further weigh against finding a violation of defendant's constitutional rights.

Defendant's argument that he was denied the effective assistance of counsel by virtue of defense counsel's failure to make opening or closing statements or cross-examine certain witnesses implicates matters of trial strategy which are dehors the record and thus not reviewable on appeal. Defendant was required to raise this claim in a CPL 440.10 motion, so that it could have been evaluated upon a complete record (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Chaplin, 16 Misc 3d 137[A], 2007 NY Slip Op 51741[U] [App Term, 2d & 11th Jud Dists 2007]). To the extent that the existing record permits review of defendant's contentions regarding the ineffective assistance of counsel (see People v Ali, 55 AD3d 919 [2008]; People v Drago, 50 AD3d 920 [2008]), we find that defense counsel provided meaningful representation in accordance with the state standard (see NY Const, art I, § 6; People v Benevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]; People v Garrett, 68 AD3d 781 [2009]; People v Johnson, 71 AD3d 1048 [2010]). Moreover, counsel's performance could not be characterized as either deficient or prejudicial to defendant and, thus, was also in accordance with the federal standard (see US Const Amend VI; Strickland v Washington, 466 US 688 [1984]).

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: June 17, 2011