PEOPLE v. WHEELER (2001)

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 information 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 N.Y.2d 241, 253, 405 N.Y.S.2d 17, 376 N.E.2d 179;  see also, People v. Staley, 41 N.Y.2d 789, 793, 396 N.Y.S.2d 339, 364 N.E.2d 1111).   Further, “this was not a complex case nor were there any unique theories of law involved” (People v. Brown [appeal No. 2], 117 A.D.2d 978, 979, 499 N.Y.S.2d 529).   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 A.D.2d 838, 840, 638 N.Y.S.2d 222).   “Sheer neglect or trifling, as in this case, is not permissible” (People v. Staley, supra, at 792, 396 N.Y.S.2d 339, 364 N.E.2d 1111).   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, 405 N.Y.S.2d 17, 376 N.E.2d 179).   The delay in charging defendant with perjury “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, 405 N.Y.S.2d 17, 376 N.E.2d 179;  see, People v. Santiago, 209 A.D.2d 885, 888, 618 N.Y.S.2d 925).   We conclude, therefore, that dismissal of the indictment is required.   In view of our decision, we do not address defendant's remaining contention.

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: