Opinion
March 13, 1990
Appeal from the Supreme Court, New York County (Frederic S. Berman, J.).
Defendant's claim that his constitutional right to a speedy trial (CPL 30.20) was denied by the 4 1/2-year delay between his arrest and his plea of guilty is without merit. Approximately 2 1/2 years of that time was occasioned by the filing of the indictment, motion practice, evidentiary hearings, and an appeal by the People of the trial court's ruling suppressing the weapon which forms the basis for indictment No. 1331/82.
Following this court's unanimous reversal of the suppression determination [ 97 A.D.2d 706], the case was calendared for December 5, 1983, but neither defense counsel nor appellant appeared. The case was adjourned until January 10, 1984, and when defendant again failed to appear, a warrant was issued for his arrest.
While defendant claims that the People failed to exercise due diligence in locating him over the next two years, the record does not bear this out. We note, for example, that the prosecutor's office had traced defendant to Baltimore, Maryland, as of December 20, 1983, and learned that he was on probation in that State. After the prosecutor's office requested that defendant's Maryland probation officer notify him that he was required to appear in New York, a man identifying himself as defendant telephoned the Trial ADA and stated his intention not to return to New York.
Thereafter, the ADA was notified by the Baltimore authorities that defendant had missed his last two probation appointments. Upon receiving this information, the ADA contacted the Baltimore Police Department and requested that they arrest defendant in connection with the New York warrant. This record as a whole indicates not only that the People diligently attempted to secure defendant's appearance, but that defendant intentionally discontinued contact with his Baltimore probation officer in order to remain absent from this jurisdiction. In light of all these circumstances, we conclude that defendant's constitutional right to a speedy trial was not violated. (See, People v Taranovich, 37 N.Y.2d 442.)
With respect to defendant's second claim on appeal, the People concede that a $100 surcharge for the conviction for the weapons conviction was improperly imposed, since the indictment preceded enactment of the mandatory surcharge (Penal Law § 60.35). Thus, it was an ex post facto penalty and must be vacated. We detect no abuse of discretion, however, in the imposition of the second $100 surcharge, for the conviction of scheme to defraud in the first degree.
Concur — Murphy, P.J., Carro, Milonas, Kassal and Wallach, JJ.