Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Desmond A. Green, J.), rendered March 25, 2009.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on January 20, 2012
PRESENT: GOLIA, J.P., WESTON and RIOS, JJ
The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree.
ORDERED that the judgment of conviction is affirmed.
Defendant pleaded guilty to criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) pursuant to a plea agreement that provided for a sentence of probation but further provided that, should defendant commit another offense while awaiting sentencing or during the period of probation, he would be sentenced to imprisonment for one year. Defendant did not appear at the December 13, 2007 sentencing, and a bench warrant issued. Defendant was subsequently arrested in Suffolk County in March 2008, for which charge he was released on his own recognizance, and again in May 2008, for which charge he was sentenced to a year's incarceration. The Kings County District Attorney learned of defendant's Suffolk County incarceration on July 30, 2008 and, on the same day, filed a detainer warrant, but did not return defendant to Kings County for sentencing until January 23, 2009, when defendant was released from his Suffolk County incarceration. Defendant's first Kings County appearance was on February 4, 2009, and he was sentenced on March 25, 2009 to a term of probation.
On appeal, defendant contends that the People's failure to exercise due diligence in returning him to Kings County for sentencing after learning, on July 30, 2008, that he was incarcerated in Suffolk County, divested the court of its sentencing jurisdiction and required that the judgment of conviction be reversed and the accusatory instrument dismissed. For the reasons that follow, we affirm the judgment of conviction.
Upon a criminal conviction, a person must be sentenced "without unreasonable delay" (CPL 380.30 ), and the determination of whether a delay is unreasonable requires consideration of the length and reasons for the delay and the prejudice to defendant as a result of the delay (People v Drake, 61 NY2d 359, 364 ). The rule requiring dismissal upon an unexcused sentencing delay "is to be applied to extremely long and unreasonable delays only" (People ex rel. v Harty v Fay, 10 NY2d 374, 379 ; see also People v Drake, 61 NY2d at 366 [reversal is required only where the delay is "long and unexplained"]). As a rule, the People have no duty to locate an absconding defendant (CPL 380.20; People v Chase, 306 AD2d 167 ; People v Headley, 134 AD2d 519 ). However, when the People are "actually aware" (People v James, 78 AD3d 862, 863 ; People v McNeil, 237 AD2d 622, 623 ) that an absconding defendant is incarcerated, they must make "reasonably diligent efforts" to produce the defendant for sentencing (People v Hendricks, 13 AD3d 61 ; see also People v Reyes, 214 AD2d 233, 236 ).
"[T]here is no specific time during which a defendant must be sentenced" (People v Turner, 222 AD2d 206, 207 ), and a seven-month delay in sentencing has been deemed "not unreasonable as a matter of law" (People v Williams, 30 AD3d 980, 983 ; see also People v Coleman, 157 AD2d 935, 936 ). Here, under the particular circumstances presented, the People's failure to produce defendant from Suffolk County during the final six months of his term of incarceration did not amount to so unreasonable a delay as to have prejudiced his right to prompt sentencing, particularly in light of the sentence imposed, the term of probation for which defendant had bargained, notwithstanding his gross violations of the terms of the plea agreement, which violations would have merited the imposition of a year's incarceration. Accordingly, the judgment of conviction is affirmed.
Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: January ...