UPON REMITTITUR FROM THE COURT OF APPEALS, THE APPELLATE DIVISION AGAIN FOUND THE SEVEN-YEAR PREINDICTMENT DELAY DID NOT DEPRIVE DEFENDANT OF DUE PROCESS OF LAW (FOURTH DEPT).

The Fourth Department, upon remittal from the Court of Appeals, determined defendant was not deprived of his right to due process by the seven-year preindictment delay. The Fourth Department had reached that same conclusion before the matter was heard by the Court of Appeals. The Court of Appeals sent the matter back because it found the Fourth Department did not correctly analyze the case under the Taranovich (37 NY2d 442, 445 [1975]) factors:

After review of defendant’s contention upon remittitur, we conclude that he was not deprived of due process of law by the preindictment delay. In determining whether defendant was deprived of due process, we must consider the factors set forth in Taranovich, which are: “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” … . “[N]o one factor [is] dispositive of a violation, and [there are] no formalistic precepts by which a deprivation of the right can be assessed” … , but “it is well established that the extent of the delay, standing alone, is not sufficient to warrant a reversal” … . People v Johnson, 2022 NY Slip Op 07407, Fourth Dept 12-23-22

Practice Point: The seven-year preindictment delay, applying the Taranovich factors, did not deprive defendant of due process of law.