Opinion
13090
January 16, 2003.
Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered April 2, 2001, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.
Paul R. Corradini, Public Defender, Elmira, for appellant.
John R. Trice, District Attorney, Elmira (Damian M. Sonsire of counsel), for respondent.
Before: Crew III, J.P., Spain, Carpinello, Lahtinen and, Kane, JJ.
MEMORANDUM AND ORDER
On February 10, 2000, defendant, an inmate at the Elmira Correctional Facility in Chemung County, was found to be in possession of a 7¼-inch sharpened metal rod. Thereafter, on September 7, 2000, defendant was charged with one count of promoting prison contraband in the first degree. After moving unsuccessfully to dismiss the indictment on due process grounds, defendant pleaded guilty to one count of attempted promoting prison contraband in the first degree and, pursuant to the plea agreement, was sentenced to 1½ to 3 years in prison to run consecutively with the sentence he was then serving.
Defendant's sole contention on appeal is that County Court improperly denied his motion to dismiss since the preindictment delay of six months and 27 days violated his due process right to a prompt prosecution. We disagree. The Court of Appeals has "`never drawn a fine distinction between due process and speedy trial standards' when dealing with delays in prosecution" (People v. Vernace, 96 N.Y.2d 886, 887, quoting People v. Singer, 44 N.Y.2d 241, 253). As a result, due process and speedy trial claims are analyzed using the same five factors (see People v. Vernace, supra at 887), namely "`the extent of the delay, the reason for the delay, the nature of the underlying charge, whether there has been an extended period of incarceration and whether there is any indication that the defense has been impaired by reason of the delay'" (People v. Staton, 297 A.D.2d 876, 876, quoting People v. Allah, 264 A.D.2d 902, 902; see People v. Venkatesan, 295 A.D.2d 635, 637).
Applying these factors, we find that the delay in this case did not deprive defendant of his due process right to a prompt prosecution. First, the delay was brief in duration and was shown to be necessary to fully investigate the facts of the case. In addition, defendant was already incarcerated for a prior conviction "and thus endured no further imposition on his freedom as a result of the delay" (People v. Allah,supra at 903; see People v. Allende, 206 A.D.2d 640, 642, appeal dismissed 84 N.Y.2d 921). Moreover, inasmuch as the crime charged concerned the safety and security of the detention facility and its employees, there is no doubt that it was serious in nature (see People v. Richardson, 298 A.D.2d 711, 712, 749 N.Y.S.2d 110, 111; People v. Diaz, 277 A.D.2d 723, 724-725, lv denied 96 N.Y.2d 758). Finally, although defendant correctly states that actual prejudice is not required to be shown (see People v. Singer, supra at 253-254), "where, as here, the delay is not so patently protracted as to require the People to establish good cause for the delay, defendant's failure to demonstrate that his defense has been impaired by reason of the delay is a significant factor militating against his due process claim" (People v. Diaz, supra at 724; see People v. Taranovich, 37 N.Y.2d 442, 446-447;People v. Staton, supra at 604). Accordingly, we find that County Court correctly concluded that defendant was not deprived of his due process right to a prompt prosecution.
Crew III, J.P., Carpinello, Lahtinen and Kane, JJ., concur.
ORDERED that the judgment is affirmed.