People v. Chiovaro

279 A.D.2d 806, 718 N.Y.S.2d 726, 2001 N.Y. App. Div. LEXIS 513

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 2001
• Status: Published

Opinion

Crew III, J.

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered October 12, 1999, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

Defendant, an inmate at Elmira Correctional Facility in Chemung County, was indicted and charged with promoting prison contraband in the first degree. Following an unsuccessful attempt to have the indictment dismissed on the ground of prearrest delay, defendant pleaded guilty to attempted promoting prison contraband in the first degree and was sentenced, as a second felony offender, to an indeterminate term of imprisonment of IV2 to 3 years. Defendant now appeals.

We affirm. The record reflects that defendant was discovered in possession of a razor blade on October 9, 1998. The incident was reported to the State Police on November 21, 1998 and, following an investigation by the State Police, the matter was referred to the District Attorney on March 31, 1999. On April 26, 1999, six months and 17 days after the incident occurred, the matter was presented to the Grand Jury. While it is undisputed that an unreasonable and unjustifiable delay in prosecuting a defendant may necessitate dismissal of an indictment (see, People v Johnson, 226 AD2d 806, 807, lv denied 88 NY2d 937), the minimal delay here of six months did not result in a deprivation of defendant’s due process rights, especially inasmuch as defendant has neither claimed nor demonstrated any prejudice by reason of such delay (see, e.g., People v Smith, 272 AD2d 713, 714, lv denied 95 NY2d 871; People v Allah, 264 ; People v Medina, 262 AD2d 708, 710, lv denied 93 NY2d 1023).

Cardona, P. J., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.