Opinion
12328
Decided and Entered: June 26, 2003.
Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered June 26, 2000, 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 (Nancy M. Eraca-Cornish of counsel), for appellant.
John R. Trice, District Attorney, Elmira (Damian M. Sonsire of counsel), for respondent.
Before: Crew III, J.P., Spain, Carpinello, Mugglin and Kane, JJ.
MEMORANDUM AND ORDER
On March 16, 1999, defendant, an inmate at Elmira Correctional Facility in Chemung County, was found in possession of a 6½-inch plexiglass shank. Following investigation by the State Police and referral to the District Attorney for grand jury action, defendant was indicted on December 7, 1999 on a charge of promoting prison contraband in the first degree. Defendant entered a plea of guilty to the lesser charge of attempted promoting prison contraband in the first degree in satisfaction of the indictment and was sentenced, as a second felony offender, to a prison term of 1½ to 3 years.
Defendant's sole contention on this appeal is that County Court erred when it denied his motion to dismiss the indictment because his due process rights were violated by the nearly nine-month delay in seeking an indictment. In determining whether this preindictment delay violated defendant's due process right to prompt prosecution, we must balance the same five factors considered when evaluating speedy trial issues, namely, "(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay" (People v. Taranovich, 37 N.Y.2d 442, 445; see People v. Singer, 44 N.Y.2d 241, 253; People v. Andrade, 301 A.D.2d 797, 798). Applying these factors, we note that this delay was relatively brief, delays of similar lengths have been found not to violate due process (see People v. Irvis, 301 A.D.2d 782, 783-784, lv denied 99 N.Y.2d 655 [10-month delay]; People v. Allah, 264 A.D.2d 902, 902-903 [nine-month delay]; People v. Allende, 206 A.D.2d 640, 642, appeal dismissed 84 N.Y.2d 921 [eight-month delay]), the underlying charge, a D felony, was serious in that it involved the safety and security of the detention facility and defendant's freedom was not impaired by the delay because he was already incarcerated for another crime (see People v. Andrade, supra at 798; People v. Richardson, 298 A.D.2d 711, 712; People v. Staton, 297 A.D.2d 876, 876-877, lv denied 99 N.Y.2d 565;People v. Diaz, 277 A.D.2d 723, 724-725, lv denied 96 N.Y.2d 758). Defendant has made no showing of prejudice to his defense caused by the delay, which is required where the delay, as in this case, was not unreasonable or protracted (see People v. Andrade, supra at 798; People v. Staton, supra at 877; People v. Diaz, supra at 724). Accordingly, we conclude that defendant's motion to dismiss the indictment was properly denied and the conviction should be affirmed. Crew III, J.P., Spain, Carpinello and Mugglin, JJ., concur.
ORDERED that the judgment is affirmed.