Opinion
2002-01391
Argued March 3, 2003.
March 24, 2003.
Appeal by the People from so much of an order of the Supreme Court, Queens County (Griffin, J.), dated December 11, 2001, as granted that branch of the defendant's omnibus motion which was to dismiss the indictment on the ground of pre-indictment delay.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Mina Malik of counsel), for appellant.
Lynn W. L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for respondent.
Before: NANCY E. SMITH, J.P., LEO F. McGINITY, BARRY A. COZIER, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, that branch of the defendant's omnibus motion which was to dismiss the indictment on the ground of pre-indictment delay is denied, and the indictment is reinstated.
Although the approximately nine-month delay between the defendant's identification as a suspect and his arrest (see People v. Papa, 143 A.D.2d 1058, 1059) was to some extent unnecessary, the severity of the underlying offense, the fact that the defendant was not incarcerated on the instant charges, and the lack of any prejudice to the defendant indicate that he was not denied due process (see People v. Vernace, 96 N.Y.2d 886, 887; People v. Taranovich, 37 N.Y.2d 442, 445; People v. Romero, 173 A.D.2d 654). Moreover, the record indicates that the pre-indictment investigation of the defendant was undertaken in good faith and the delay did not cause the prosecution to gain a tactical advantage (see People v. Vernace, supra at 888; People v. Quiroz, 192 A.D.2d 730; People v. Papa, supra at 1059). Therefore, the Supreme Court should not have dismissed the indictment.
SMITH, J.P., McGINITY, COZIER and MASTRO, JJ., concur.