Opinion
2012-04-27
The PEOPLE of the State of New York, Respondent, v. Christopher MOUSTAKOS, Defendant–Appellant.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered March 31, 2011. The judgment convicted defendant, upon his plea of guilty, of attempted promoting prison contraband in the first degree.Charles A. Marangola, Moravia, for defendant-appellant. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for respondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered March 31, 2011. The judgment convicted defendant, upon his plea of guilty, of attempted promoting prison contraband in the first degree.Charles A. Marangola, Moravia, for defendant-appellant. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for respondent.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of attempted promoting prison contraband in the first degree (Penal Law §§ 110.00, 205.25[2] ), defendant contends that he was denied due process and his right to a speedy trial based on a delay of just over seven months between the date of the incident and the date the indictment was issued. Applying the factors set forth in People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303, we reject that contention ( see People v. Vernace, 96 N.Y.2d 886, 887–888, 730 N.Y.S.2d 778, 756 N.E.2d 66). “There is no specific temporal period by which a delay may be evaluated or considered ‘presumptively prejudicial’ ” ( People v. Romeo, 12 N.Y.3d 51, 56, 876 N.Y.S.2d 666, 904 N.E.2d 802, cert. denied ––– U.S. ––––, 130 S.Ct. 63, 175 L.Ed.2d 24, quoting Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 120 L.Ed.2d 520), but a delay of just over seven months alone is insufficient to require dismissal of the indictment ( see People v. Doyle, 50 A.D.3d 1546, 856 N.Y.S.2d 786; People v. Walker, 2 A.D.3d 1454, 769 N.Y.S.2d 435, lv. denied 2 N.Y.3d 808, 781 N.Y.S.2d 307, 814 N.E.2d 479; People v. Beyah, 302 A.D.2d 981, 754 N.Y.S.2d 619, lv. denied 99 N.Y.2d 626, 760 N.Y.S.2d 107, 790 N.E.2d 281). The delay was caused in part by an investigative delay inherent in the process by which crimes that occur in prison are referred to the District Attorney's Office, and defendant does not contend that the delay was caused by bad faith ( see Romeo, 12 N.Y.3d at 56–57, 876 N.Y.S.2d 666, 904 N.E.2d 802). “The charge against defendant was serious, ‘involv[ing] the safety and security of a correctional facility’ ... Moreover, because defendant was already incarcerated on a prior felony conviction, ‘the delay caused no further curtailment of his freedom’ ... Finally, we are unable to conclude on the record before us that the defense has been impaired by reason of the delay” ( People v. Jenkins, 2 A.D.3d 1390, 1391, 769 N.Y.S.2d 413; see People v. Coggins, 308 A.D.2d 635, 636, 764 N.Y.S.2d 364; People v. Richardson, 298 A.D.2d 711, 712, 749 N.Y.S.2d 110).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.