Opinion
November 15, 1991
Appeal from the Wyoming County Court, Dadd, J.
Present — Doerr, J.P., Denman, Green, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: County Court properly denied that portion of defendant's omnibus motion which sought to dismiss the indictment upon the ground that pre-indictment delay deprived defendant of due process (see, NY Const, art I, § 6; People v. Singer, 44 N.Y.2d 241). The period of delay was not unduly lengthy, especially in light of the serious nature of the offenses — three counts of assault in the second degree committed by an inmate upon correction officers. There is no suggestion that the People delayed presentment before a Grand Jury for the purpose of obtaining some tactical advantage. The record is devoid of evidence that defendant was prejudiced by the delay. In sum, defendant failed to demonstrate special circumstances which might have caused the delay to impair his right to a fair trial (see, People v. Fuller, 57 N.Y.2d 152, 159-160; People v. Papa, 143 A.D.2d 1058; People v. King, 114 A.D.2d 650, lv denied 67 N.Y.2d 653).
There is no merit to defendant's contention that the evidence was legally insufficient to prove that he intended to prevent the correction officers from performing their duties. Sufficient evidence was presented from which the jury could infer that defendant possessed the requisite intent (see, People v. Allah, 126 A.D.2d 778, 780, lv denied 69 N.Y.2d 876). Testimony of defense witnesses that the altercation was initiated by one of the correction officers presented an issue of credibility for the jury to resolve, and the jury's resolution of that issue is not contrary to the weight of evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). Also without merit is defendant's assertion that the evidence was insufficient to prove that the officers suffered a "physical injury" (see, Penal Law § 10.00; § 120.05 [3]; People v. Maturevitz, 149 A.D.2d 908; People v. Ruttenbur, 112 A.D.2d 13).