People v. Liberators

96 A.D.2d 1047

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 6, 1983
• Status: Published

Opinion

— Motion by appellant, the People of the State of New York, for reargument of this court’s order, dated November 29, 1982 [90 AD2d 1003], which affirmed an order of the Supreme Court, Queens County (Rubin, J.), dated October 27, 1981, granting the defendant’s motion to dismiss the indictment on the ground of unconstitutional preindictment delay. Motion granted and upon reargument we adhere to our original determination. The People have moved to reargue the above-named appeal, claiming that the decision therein is inconsistent with our decision in People v Bonsauger (91 AD2d 1001). Both appeals arose out of a city-wide investigation of the bribery of inspectors for the department of consumer affairs and involved similar periods of preindictment delay. In Bonsauger we reversed Criminal Term’s finding of an unconstitutional preindictment delay and reinstated the indictment. In Liberatore, however, we affirmed the dismissal. Upon reconsideration of our decision in Liberatore, we conclude that the decisions are not inconsistent. The cases are factually distinguishable, most notably in the degree of prejudice suffered by the defendant in Liberatore. In Bonsauger, we noted that the defendant’s inability to recall the events on the date of the alleged bribe was mitigated by the presence of an audible tape recording of the entire transaction (see People v Bonsauger, supra). In this case, however, it is conceded by the People that the tape recording of the alleged bribery incident is inaudible, and therefore is unavailable to refresh the defendant’s recollection. The prejudice thus generated distinguishes this case from People v Bonsauger (supra) and, when combined with a consideration of the nature of the offense and the quantum of the preindictment delay, serves to render the dismissal of the indictment in this case appropriate (see People v Taranovich, 37 NY2d 442; People v Vasquez, 79 AD2d 621; People v Bryant, 65 AD2d 333). Gulotta, J. P., Weinstein, Niehoff and Rubin, JJ., concur.