Opinion
N10180-02.
Decided July 1, 2005.
ROBERT DIDIO, ESQ., RICHARD A. BROWN, D.A., SHARRON KEARNEY, A.D.A., for defendant.
The following constitutes the opinion, decision and order of the court.
By motion dated May 23, 2005, defendant seeks an order of the court to dismiss the indictment pursuant to CPL 330.80(1). Defendant argues that because defendant has not yet been sentenced, an unreasonable delay has occurred resulting in a loss of jurisdiction by the court requiring dismissal of the indictment. Specifically, defendant argues that the prosecutor's failure to file a sufficient hold on defendant when he was arrested in North Carolina and failure to secure defendant's presence at sentencing for fourteen months was "long and unexplained [and] therefore unreasonable."
In response, the People have filed an affirmation in opposition, dated June 27, 2005, whereby they assert that defendant's motion should be denied in its entirety arguing that defendant's application is without merit and, in any event, a delay in sentencing, if any, is the result of defendant's own conduct and his desire to avoid the consequences of his criminal actions. Furthermore, the People assert that they were prepared to sentence defendant in January, February and March 2004 and that defendant caused the sentence delay by fleeing this jurisdiction and getting arrested in another. The People contend that even if a sentencing delay did occur, the delay was reasonable with a plausible explanation and therefore, they should not be charged with the delay.
For the reasons stated herein, a hearing will be held upon the issue as to whether the delay in producing the defendant in this Court was reasonable.
FACTS/PROCEDURAL HISTORY
On March 21, 2002, a three-count indictment was filed with the court charging defendant with two counts of criminal sale of a controlled substance in the third degree (P.L. 220.39(1)) and one count of criminal sale of a controlled substance in or near school grounds.
During the course of this litigation a Wade hearing was conducted before Supreme Court Justice Stanley B. Katz and it was held that there was no undue suggestiveness in the identification procedures employed and that a proper confirmatory identification had taken place.
After a bench trial before this Court, on November 12, 2003, defendant was found guilty of two counts of criminal sale of a controlled substance in the third degree. Defendant's sentencing upon the conviction was scheduled for January 6, 2004, however, on this date, did not occur because defendant had hired a new attorney. Thus, the matter was adjourned for sentencing until February 19, 2004. On February 19, 2004, the Court adjourned the sentencing until March 30, 2004. However, on March 30, 2004, defendant failed to appear and a bench warrant was ordered by this Court and defendant's bail was forfeited, but stayed, because the Court was advised that defendant had been arrested in North Carolina on narcotics charges and was in the custody of that jurisdiction. In defendant's absence, counsel filed a motion, dated March 26, 2004, to vacate the conviction pursuant to CPL 330.30. Defense counsel's application was denied by this Court in a decision dated June 15, 2004.
In this motion, defendant claimed that the hearing court erroneously held that there was no suggestiveness in the identification procedures employed and therefore, moved to vacate his conviction.
This Court held that defendant was not entitled to the requested relief since he was absent from the jurisdiction. See Decision, dated June 15, 2004. In any event, the issues raised by defendant regarding the pre-trial hearing and probable cause before another Supreme Court Justice was not properly before this Court which was bound by the hearing decision of a Justice of coordinate jurisdiction.
Procedural History as Represented by the Prosecution as to Efforts Undertaken to Produce Defendant in New York
In their response affirmation, the People represent that various procedures were undertaken in order to secure defendant's appearance for sentencing. The following is a recitation of the People's representations made in their affirmation as to what was done to produce defendant for sentencing before this Court.
Initially, the Queens County District Attorney's Office was made aware of defendant's arrest in Guilford County, North Carolina on March 30, 2004 and immediately began extradition proceedings on that date in an effort to secure defendant's presence in New York for sentencing. On April 8, 2004, defendant, who was also known as Christopher Williams in North Carolina, was arraigned there on the New York State fugitive charges and $100,000 bail was set by that court. At that time, defendant refused to waive formal extradition proceedings, thus, requiring the Queens County District Attorney to obtain a New York State Governor's warrant in order to have defendant produced for sentencing in this jurisdiction. The North Carolina authorities exercised their right to hold defendant in that jurisdiction until he was tried, discharged or convicted and punished there upon the pending North Carolina heroine trafficking charge. See CPL § 570. Thus, working in conjunction with the North Carolina authorities, the application for issuance of the Governor's Warrant by the prosecution here was held in abeyance until the local North Carolina charges could be resolved. Nevertheless, on December 4, 2004, in response to information obtained from the Court, the Queens County District Attorney's Office contacted the North Carolina authorities and received the following updated information: defendant had made bail in North Carolina, but was rearrested for threatening a witness in that case. The Queens County District Attorney represents that it was only recently that they were informed that defendant had been at liberty from July 29, 2004 until April 7, 2005.
In March 2005, the North Carolina authorities agreed to turn defendant over to New York State upon issuance of a Governor's Warrant. Thus, an application for the warrant was made on March 22, 2005 and the warrant was issued on April 4, 2005. Defendant was transported to New York on May 20, 2005 and remains in custody pending sentencing in this matter.
Procedural History as Represented by Defense Counsel as to Knowledge Possessed by the Local Prosecutor as to Defendant's Whereabout's and Efforts to Produce Him for Sentencing.On March 30, 2004, the People were advised that defendant was arrested and incarcerated in North Carolina. See Minutes, March 30, 2004, annexed as Defendant's Exhibit "A". On June 21, 2004, the prosecution advised the Court that defendant refused to waive formal extradition proceedings and that the People were in the process of obtaining a Governor's Warrant to secure his appearance. See Minutes, June 21, 2004, annexed as Defendant's Exhibit "B". At that time, the People reported that it was their belief that a plea was being considered in the North Carolina matter. Id.
Thereafter, on August 25, 2004, defense counsel advised this Court and the People that defendant was out on bail in North Carolina and claimed he could not leave the jurisdiction or would be in violation of the directive of the local court. See Minutes, August 25, 2004, annexed as Defendant's Exhibit "C". Also on this date, defense counsel represented to the Court that the North Carolina matter was not resolved and motion practice was taking place. Id.
The calendar minutes of September 1, 2004, annexed as Defendant's Exhibit "D", reveal that the prosecutor represented that the North Carolina matter had not yet been placed on the Superior Court's calendar for that term and they would not release defendant until the matter was disposed of in that jurisdiction. At that time, a Governor's Warrant was not yet obtained.
The assigned prosecutor to this matter was not present in Court on August 25, 2004, September 1, 2004 or September 9, 2004 and another Assistant District Attorney appeared on her behalf.
On December 1, 2004, there is a discrepancy in the minutes annexed as Defendant's Exhibit "E" as to whether defendant was incarcerated in North Carolina or whether he was released on bail and still present in that jurisdiction. DECISION
It now appears that the District Attorney concedes that defendant was released on bail in North Carolina from July 29, 2004 until April 7, 2005.
A sentence must be pronounced without unreasonable delay pursuant to Criminal Procedure Law Section 380.30(1). A delay in sentencing a defendant which is lengthy and unjustified can result in a loss of jurisdiction by the court. See People v. Marshall, 228 AD2d 15, 653 N.Y.S.2d 604 (2nd Dept. 1997). A defendant is entitled to be sentenced promptly after conviction. See People v. Drake, Jr., 61 NY2d 359, 474 N.Y.S.2d 276 (1984). Notably, it has been held that "there is no specific time during which a defendant must be sentenced and a delay in sentencing of one year is not unreasonable as a matter of law. See People v. Turner, 222 AD2d 206, 634 N.Y.S.2d 685 (1st Dept. 1995).
Courts distinguish between sentencing delays which are caused by a defendant and those which are caused by the State. See id. A defendant will not be permitted to benefit from a delay if such defendant is primarily responsible for the sentencing delay. Id. This is particularly true when the delay was caused by a defendant who has absconded. See id.; People v. Campbell, 306 AD2d 495, 761 N.Y.S.2d 834 (2nd Dept. 2003) (sentence delay caused by absconding defendant who used aliases and false pedigree information did not result in loss of jurisdiction).
Furthermore, if a delay is the result of legal proceedings or other conduct of the defendant which frustrates the entry of judgment, it is excusable. See Drake, supra at 365 citing other cases.
Standing alone, the passage of time does not prohibit the imposition of a sentence or require a defendant's discharge. See Drake, supra at 365-66. The determinative fact as to whether a delay in sentencing is unreasonable resulting in a loss of jurisdiction by the court is the reasonableness of the delay and if good cause can be shown for such period during which the sentence was not executed. See id.
In Drake, a 39-month delay in sentencing the defendant was found to be unreasonable, absent facts excusing it, and the indictment was dismissed. The lower court in Drake, in response to the defendant's motion to dismiss the indictment which claimed that the court lost jurisdiction because of the lengthy sentence delay, denied the defendant's motion. In denying defendant's dismissal motion, the lower court found the lengthy sentence delay excusable when it "stated cryptically that the 39-month delay resulted from the fact that three different defense attorneys had approached him and requested that he grant an order of dismissal in this case as he had done in the case of a codefendant." The Court of Appeals held that the lower court's "response to the motion hardly excused a delay of over three years." Thus, the indictment was dismissed. Where a delay between conviction and sentence is "not protracted and plausible reasons are offered to explain it, the courts hold that it is not unreasonable." Drake, supra at 366. Where a delay is found to be extended the various factors must be balanced to determine whether the delay is unreasonable, thus, requiring dismissal. See id.
In Drake there was no issue as to the defendant being apprehended and incarcerated in another state jurisdiction with pending charges in that jurisdiction during the time between conviction and sentencing in New York as we have here.
Here, in order for the Court to balance the various factors that have led to the delay in sentencing defendant, the Court is ordering a hearing to explore what portion of the delay, if any, in sentencing was a result of defendant's own actions, and what period of delay, if any, was the result of the People's action or inaction. Thus, the Court will balance the factors established at the hearing to determine if jurisdiction has been lost.
See e.g., People v. McNeil, 237 AD2d 622, 655 N.Y.S.2d 1009 (2nd Dept. 1997) (hearing necessary to determine whether New York authorities actually aware of defendant's incarceration in Pennsylvania); People v. Marshall, 228 AD2d 15, 653 N.Y.S.2d 604 (2nd Dept. 1997).
Accordingly, a hearing is ordered to determine with clarity, when the People actually became aware defendant was incarcerated in North Carolina and whether diligent efforts were made to secure his appearance here for sentencing. This Court will review the testimony elicited as to what conversations took place between the state authorities and when. Additionally, the hearing will explore if and when defendant's out of state matters have been resolved. Furthermore, this Court will evaluate whether defendant used any aliases or contact information that is different from that provided in his New York case. The Court will consider what if any portion of the sentencing delay was the result of defendant's own actions. Moreover, the Court will consider, as part of its balancing, whether motion practice was pending in this matter that would have resulted in a sentencing delay, whether or not defendant was present for sentencing.