| People v Striplin |
| 2008 NY Slip Op 01447 [48 AD3d 878] |
| February 21, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JosephStriplin, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Thomas M. Bowes of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Chemung County (Buckley,J.), rendered November 28, 2005, upon a verdict convicting defendant of the crime of promotingprison contraband in the first degree.
On June 16, 2004, defendant was found to be in possession of a piece of sharpened metalwhile he was incarcerated at the Southport Correctional Facility in Chemung County. As a resultof this incident, he was charged in an indictment with promoting prison contraband in the firstdegree and was found guilty of the charge at a jury trial. Defendant was thereafter sentenced as asecond felony offender to 2½ to 5 years in prison, to run consecutive to the sentence he wasthen serving. He now appeals.
Defendant contends that the indictment must be dismissed because it does not contain thesignature of the grand jury foreperson as required by CPL 200.50 (8). "Initially, we note thatbecause defendant failed to move to dismiss the indictment on that ground, his contention isunpreserved and is 'reviewable as of right only if the missing signature renders the indictmentjurisdictionally defective' " (People vBrown, 17 AD3d 869, 869-870 [2005], quoting People v Stauber, 307 AD2d544, 545 [2003], lv denied 100 NY2d 599 [2003]). The record in this case discloses thatthe Chemung County District Attorney signed the face of the indictment and the grand juryforeperson signed the backer accompanying it. Viewing these documents together as [*2]integral parts of the whole, we do not find that the absence of thejury foreperson's signature on the indictment itself constitutes a jurisdictional defect warrantingdismissal (see People v Brown, 17 AD3d at 870).
Defendant also claims that his due process rights were violated by the 9½-month delayin bringing the indictment against him. Applying the factors set forth by the Court of Appeals inPeople v Taranovich (37 NY2d 442, 445 [1975]), we do not find that the preindictmentdelay violated defendant's due process rights under the circumstances presented here. While thePeople have not set forth the reason for the delay, delays of similar duration have been found tocomport with constitutional requirements (see e.g. People v Coggins, 308 AD2d 635, 635[2003] [9½-month delay]; People v Irvis, 301 AD2d 782 [2003], lv denied99 NY2d 655 [2003] [10-month delay]; People v Allah, 264 AD2d 902 [1999][nine-month delay]). Notably, the underlying crime had serious implications for the safety andsecurity of the correctional facility, and defendant's liberty was not curtailed because he wasalready incarcerated (see People vLake, 2 AD3d 892, 893 [2003]; People v Coggins, 308 AD2d at 636).Considering the foregoing, as well as the lack of any showing that the defense was impaired bythe delay, we find that there was no due process violation (see People v Campbell, 306AD2d 694 [2003], lv denied 100 NY2d 593 [2003]). Defendant's remaining argumentshave been considered and found to be without merit.
Cardona, P.J., Peters, Carpinello and Rose, JJ., concur. Ordered that the judgment isaffirmed.