Opinion
KA 03-01467.
December 31, 2003.
Appeal from an order of Seneca County Court (Bender, J.), entered April 4, 2002, which granted defendant's motion and dismissed the indictment.
RICHARD E. SWINEHART, DISTRICT ATTORNEY, WATERLOO (JOHN A. CIRANDO OF COUNSEL), FOR PLAINTIFF-APPELLANT.
J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., HURLBUTT, SCUDDER, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law, the motion is denied, the indictment is reinstated and the matter is remitted to Seneca County Court for further proceedings on the indictment.
Memorandum: The People appeal pursuant to CPL 450.20 (1) from an order granting defendant's motion and dismissing the indictment on the ground that defendant was deprived of due process by a six-month preindictment delay in prosecuting him on a charge of promoting prison contraband in the first degree (Penal Law § 205.25). Applying the factors identified in People v. Taranovich ( 37 N.Y.2d 442, 445), we agree with the People that County Court erred in dismissing the indictment ( see People v. Vernace, 96 N.Y.2d 886, 887; People v. Singer, 44 N.Y.2d 241, 251-253; People v. Beyah, 302 A.D.2d 981, lv denied 99 N.Y.2d 626) . Even assuming, arguendo, that the People failed to advance a justifiable excuse for the delay, we note that similar periods of delay have been found to be within constitutional limits ( see People v. Lesiuk, 81 N.Y.2d 485, 490-491 [eight-month delay]; Beyah, 302 A.D.2d 981 [over 12 months]; People v. Irvis, 301 A.D.2d 782, 784, lv denied 99 N.Y.2d 655 [10 months]; People v. Mangan, 258 A.D.2d 819, 819-820, lv denied 93 N.Y.2d 927 [20 months]; People v. Torres, 257 A.D.2d 772, 773, lv denied 93 N.Y.2d 903 [19 months]). The charge against defendant was serious, "involv[ing] the safety and security of a correctional facility ( see People v. Richardson, 298 A.D.2d 711, 712; People v. Staton, 297 A.D.2d 876, 877, lv denied 99 N.Y.2d 565)" ( People v. Coggins, 308 A.D.2d 635, 636). Moreover, because defendant was already incarcerated on a prior felony conviction, "the delay caused no further curtailment of his freedom" ( Richardson, 298 A.D.2d at 712; see Coggins, 308 A.D.2d at 636; People v. Diaz, 277 A.D.2d 723, 724, lv denied 96 N.Y.2d 758). Finally, we are unable to conclude on the record before us that the defense has been impaired by reason of the delay ( see People v. Hernandez, 306 A.D.2d 751, 752; People v. Andrade, 301 A.D.2d 797, 798; Richardson, 298 A.D.2d at 712).