Opinion
1999-11616, 2000-09786
Argued October 21, 2002.
November 25, 2002.
Appeal by the defendant from (1) a judgment of the Supreme Court, Queens County (Erlbaum, J.), rendered November 29, 1999, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence, and (2) a resentence of the same court, imposed December 22, 1999.
Lynn W. L. Fahey, New York, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jerry Marti, and Donna Aldea of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the judgment and the resentence are affirmed.
Under the circumstances of this case, the delay in the defendant's sentencing was not the result of judicial or prosecutorial negligence. Therefore, the defendant was not entitled to dismissal of the indictment pursuant to CPL 380.30 (cf. People v. Miller, 130 A.D.2d 449, 450; People v. Monaghan, 34 A.D.2d 815; see generally People v. Lebron, 88 N.Y.2d 891, 894-895). Moreover, the defendant was not in the custody of the Commissioner of Mental Health for a period totaling more than two-thirds of the maximum sentence for the highest class felony charged in the indictment (see CPL 730.50).
FLORIO, J.P., KRAUSMAN, TOWNES and CRANE, JJ., concur.