People v. Allah

• Decision Date: 23 September 1999
• Parties: The PEOPLE of the State of New York, Respondent, v. Raheem ALLAH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 92

696 N.Y.S.2d 92

The PEOPLE of the State of New York, Respondent, v. Raheem ALLAH, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Sept. 23, 1999.

Cheryl Maxwell, Plattsburgh, for appellant.

Clinton D. Clute, District Attorney (Kristy L. Sprague of counsel), Plattsburgh, for respondent.

Before: MERCURE, J.P., CREW III, PETERS, SPAIN and GRAFFEO, JJ.

MERCURE, J.P.

Appeals from two judgments of the County Court of Clinton County (McGill, J.), rendered September 14, 1998 and December 18, 1998, convicting defendant upon his plea of guilty of the crimes of arson in the second degree and assault in the second degree (two counts).

Defendant, a prison inmate, pleaded guilty to the crimes of arson in the second degree and two counts of assault in the second degree in full satisfaction of an eight-count indictment. He now appeals, contending that County Court erred in denying his motion to dismiss the indictment based on an alleged due process violation stemming from the People's unjustified, nine-month delay in seeking an indictment.

In determining whether a defendant's due process right to prompt prosecution has been violated, five factors are relevant: the extent of the delay, the reason for the delay, the nature of the underlying charge, whether there has been an extended period of incarceration and whether there is any indication that the defense has been impaired by reason of the delay (see, People v. Singer, 44 N.Y.2d 241, 253, 405 N.Y.S.2d 17, 376 N.E.2d 179; People v. Mangan, 258 A.D.2d 819, 819-820, 686 N.Y.S.2d 506, 508, lv. denied 93 N.Y.2d 927, 693 N.Y.S.2d 510, 715 N.E.2d 513; People v. Brown, 243 A.D.2d 750, 751, 663 N.Y.S.2d 670). Acknowledging that defendant confessed to certain charges stemming from the incident at issue at a tier III disciplinary hearing held only eight days after the incident and that the People have consistently failed to offer any excuse for waiting over nine months before seeking an indictment, we conclude, nevertheless, that the delay was not so protracted as to violate due process principles (see, People v. Cooper, 258 A.D.2d 815, 815-817, 686 N.Y.S.2d 172, 173-174 [seven-month delay not unreasonable]; compare, People v. Singer, supra, at 254, 405 N.Y.S.2d 17, 376 N.E.2d 179 [delay is "certainly" protracted and requires good cause when it is over a period of years] ). In our opinion, a nine-month gap is comparatively brief where speedy trial considerations are at issue (see, People v. Allende, 206 A.D.2d 640, 642, 614 N.Y.S.2d 612, appeal dismissed 84 N.Y.2d 921, 621 N.Y.S.2d 510, 645 N.E.2d 1209; compare, People v. Gallup, 224 A.D.2d 838, 840, 638 N.Y.S.2d 222),...