Opinion
13361.
Decided and Entered: December 4, 2003.
Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered July 23, 2001, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.
Richard W. Rich Jr., Public Defender, Elmira (Michael P. Nevins of counsel), for appellant.
John R. Trice, District Attorney, Elmira (Damian M. Sonsire of counsel), for respondent.
Before: Cardona, P.J., Mercure, Peters, Spain and Carpinello, JJ.
MEMORANDUM AND ORDER
On June 14, 2000, defendant, an inmate, was found in possession of a plexiglass shank. Following an investigation by the State Police and referral to the District Attorney, defendant was indicted by a grand jury on December 20, 2000 on one count of promoting prison contraband in the first degree. After unsuccessfully moving to dismiss the indictment on due process grounds, defendant entered a plea of guilty to the lesser charge of attempted promoting prison contraband in the first degree and was sentenced, as a second felony offender, to a prison term of 1½ to 3 years, to run consecutively with the sentence he was then serving.
Defendant now appeals, contending that his due process rights were violated as a result of County Court's failure to dismiss the indictment based on a six-month preindictment delay. We disagree. The Court of Appeals has firmly established that claims of preindictment prosecutorial delay are to be analyzed according to the factors advanced in People v. Taranovich ( 37 N.Y.2d 442, 445). Applying these factors, we find no reason to conclude that defendant's due process rights were violated.
Although the People have not explained why the indictment was not sought sooner, we note that "similar delays have been found to be within constitutional parameters" (People v. Coggins, ___ A.D.2d ___, ___, 764 N.Y.S.2d 364, 364 [9½-month delay]; see e.g. People v. Staton, 297 A.D.2d 876, lv denied 99 N.Y.2d 565 [six-month delay]; People v. Chiovaro, 279 A.D.2d 806, lv denied 96 N.Y.2d 827 [six-month delay]; People v. Allah, 264 A.D.2d 902 [nine-month delay]). Considering the seriousness of the crime, involving the safety and security of a correctional facility, the fact that defendant was already incarcerated (see People v. Richardson, 298 A.D.2d 711, 712; People v. Diaz, 277 A.D.2d 723, 724-725, lv denied 96 N.Y.2d 758), and that defendant has not shown any prejudice (see People v. Andrade, 301 A.D.2d 797, 798; People v. Allah, supra at 903), we conclude that defendant's motion to dismiss the indictment was properly denied and the judgment of conviction is, therefore, affirmed.
Cardona, P.J., Mercure, Peters and Spain, JJ., concur.
ORDERED that the judgment is affirmed.