People v. Wheeler

Dec 21, 2001
Versions:289 A.D.2d 959
737 N.Y.S.2d 711
2001 N.Y. App. Div. LEXIS 12525

Judgment unanimously reversed on the law, motion granted, indictment dismissed and matter remitted to Steuben County Court for proceedings pursuant to CPL 470.45. Memorandum: County Court erred in denying the motion of defendant seeking dismissal of the indictment on the ground that preindictment delay deprived him of his due process right to a prompt prosecution. Under the circumstances of this case, we conclude that the delay of more than 22 months from defendant’s alleged commission of perjury in the first degree to the filing of the indictment is excessive. At the time defendant testified at his trial in June 1998, the prosecution possessed all of the in formation necessary to charge him with perjury and in fact had made known its intention to prosecute him for that crime (see, People v Singer, 44 NY2d 241, 253; see also, People v Staley, 41 NY2d 789, 793). Further, “this was not a complex case nor were there any unique theories of law involved” (People v Brown [appeal No. 2], 117 AD2d 978, 979). The prosecutor’s explanation that the bulk of the delay was due to “inadvertence” is insufficient to justify the delay (see, People v Gallup, 224 AD2d 838, 840). “Sheer neglect or trifling, as in this case, is not permissible” (People v Staley, supra, at 792). Finally, the fact that defendant was incarcerated for another crime during the period at issue does not excuse the delay (see, People v Singer, supra, at 254). The delay in charging defendant with peijury “could have prolonged his incarceration, as a practical matter, by foreclosing the possibility of a concurrent sentence and by depriving him of any meaningful opportunity for rehabilitation” (People v Singer, supra, at 253; see, People v Santiago, 209 AD2d 885, 888). We conclude, therefore, that dismissal of the indictment is required. In view of our decision, we do not address defendant’s remaining contention. (Appeal from Judgment of Steuben County Court, Furfure, J. — Attempted Perjury, 1st Degree.) Present — Pigott, Jr., P. J., Green, Pine, Hayes and Hurlbutt, JJ.