Opinion
11989
Decided and Entered: September 18, 2003.
Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered February 14, 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., Peters, Spain, Carpinello and, Lahtinen, JJ.
MEMORANDUM AND ORDER
On June 3, 1998, defendant, an inmate at the Elmira Correctional Facility in Chemung County, was found to be in possession of five seven-inch sharpened wooden rods. Consequently, on March 18, 1999, he was indicted on five counts of promoting prison contraband in the first degree. After moving unsuccessfully to dismiss the indictment on due process grounds, defendant pleaded guilty to one count of attempted promoting prison contraband in the first degree and was sentenced, as a second felony offender, to an indeterminate prison term of 1½ to 3 years, to run consecutively to the sentence he was already serving.
Defendant now appeals arguing that County Court's failure to dismiss the indictment based on the preindictment delay of nine months and 15 days violated his constitutional due process rights. We disagree. When dealing with prosecutorial delays, the Court of Appeals has "`never drawn a fine distinction between due process and speedy trial standards'" (People v. Vernace, 96 N.Y.2d 886, 887, quoting People v. Singer, 44 N.Y.2d 241, 253); as such, challenges on both grounds are addressed by using the factors set forth in People v. Taranovich ( 37 N.Y.2d 442, 445). Applying these well-settled factors to this case, we conclude that the preindictment delay did not deprive defendant of his due process rights.
Although the People have failed to advance a justifiable excuse for the delay, similar delays have been found to be within constitutional parameters (see People v. Irvis, 301 A.D.2d 782, 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. Mangan, 258 A.D.2d 819, 819-820, lv denied 93 N.Y.2d 927 [20-month delay]; People v. Torres, 257 A.D.2d 772, 773, lv denied 93 N.Y.2d 903 [19-month delay]), "particularly where, as here, the indictment is well within the statutory period of limitations" (People v. Allah, supra at 903; see People v. Irvis, supra at 784). Moreover, the underlying charges involved the safety and security of a correctional facility (see People v. Richardson, 298 A.D.2d 711, 712; People v. Staton, 297 A.D.2d 876, 877, lv denied 99 N.Y.2d 595). In addition, since defendant was already incarcerated for a previous felony conviction, "the delay caused no further curtailment of his freedom" (People v. Richardson, supra at 712; see People v. Diaz, 277 A.D.2d 723, 724, lv denied 96 N.Y.2d 758). Accordingly, we find that County Court correctly concluded that defendant was not deprived of his due process right to a prompt prosecution.
Crew III, J.P., Peters, Spain and Lahtinen, JJ., concur.
ORDERED that the judgment is affirmed.