Opinion
February 27, 1995
Appeal from the County Court, Dutchess County (Pagones, J.).
Ordered that the judgment is affirmed.
The defendant argues that there is no valid explanation for the periods of delay in the prosecution of this matter which occurred between February 14, 1990, and July 6, 1990, and between April 30, 1991, and March 2, 1992 and that this resulted in a violation of his constitutional right to a speedy trial. The People attribute the former delay of approximately five months to calendar congestion, and the latter delay of over 10 months to the pendency of a plea-bargain offer. According to the findings of fact made by the County Court after a hearing, this offer had been conveyed by telephone in May 1991, and had remained unanswered for approximately 10 months. As did the County Court, we credit the hearing testimony of the Assistant District Attorney, and find that this plea offer had in fact been conveyed to defense counsel in May 1991. We also find that defense counsel, knowing his client had been released from a psychiatric hospital and returned to jail, requested "a couple of weeks" to consider the offer, and then failed to contact the Assistant District Attorney as promised.
We agree with the People that this delay of more than 15 months does not, in and of itself, warrant dismissal of the indictment (see, People v. Watts, 57 N.Y.2d 299; People v. Perez, 42 N.Y.2d 971; People v. Ganci, 27 N.Y.2d 418, cert denied 402 U.S. 924; People v. Whelan, 198 A.D.2d 668; People v. Johnson, 184 A.D.2d 862; People v. Brown, 117 A.D.2d 978, 979; People v. White, 81 A.D.2d 486, cert denied 455 U.S. 992). There is no competent proof in the record of actual prejudice (cf., People v. Moore, 47 N.Y.2d 872; People v. Johnson, 38 N.Y.2d 271). The crime was one of "unprovoked [and] predatory" violence (People v. Perez, supra, at 972; cf., People v. Nelson, 197 A.D.2d 744; People v Respress, 195 A.D.2d 1053). In light of the particular procedural history of this case, there is an unusually strong basis for concluding that the defendant had a tactical interest in prolonging the length of his pretrial detention in the local jail. Upon consideration of all the relevant factors (see, People v. Taranovich, 37 N.Y.2d 442; see also, Barker v. Wingo, 407 U.S. 514), we conclude that the defendant was not deprived of his constitutional right to a speedy trial. Bracken, J.P., Sullivan, Miller and Goldstein, JJ., concur.