Opinion
April 7, 1998
Appeal from the Supreme Court, New York County (Harold Rothwax, J.).
Defendant's sentence was pronounced without unreasonable delay since the delay was not the result of judicial or prosecutorial negligence (People v. Drake, 61 N.Y.2d 359, 363-367). The record establishes that defendant was aware of the sentencing date announced by the court after he pleaded guilty and was released on bail but that he absconded, evading the police for 17 years by using aliases and false pedigree information. The delay in imposing sentence was attributable almost entirely to defendant's conduct (see, People v. Soto, 233 A.D.2d 243, lv denied 89 N.Y.2d 946). Defendant did not sufficiently substantiate his claim that when he was arrested in Florida, the New York authorities declined to extradite him (see, People v. Lopez, 228 A.D.2d 395, lv denied 88 N.Y.2d 1022; cf., People v. Lomax, 50 N.Y.2d 351).
Defendant's claim that the court's failure to state the reason why it was fixing a minimum term, as required by Penal Law § 70.00 (former [3] [b]), as it existed at the time he pleaded guilty in 1977, violated the Ex Post Facto Clause (US Const, art I, § 10), has not been preserved for appellate review as a matter of law (CPL 470.05; People v. Ruz, 70 N.Y.2d 942), and we decline to review this claim in the interest of justice. Were we to review it, we would find that the change in Penal Law § 70.00 (3) (b), which made it mandatory for the court to impose a minimum sentence and no longer required the court to set forth its reasons for imposing such minimum sentence, merely created a change in the mode of procedure as opposed to a substantive change and the sentence imposed did not, therefore, violate the Ex Post Facto Clause (see, Dobbert v. Florida, 432 U.S. 282; Beazell v. Ohio, 269 U.S. 167; People v. Hudy, 73 N.Y.2d 40).
Since defendant failed to raise his ineffective assistance of counsel claim by way of a CPL 440.10 motion, the claim is not reviewable on direct appeal because it is based on facts dehors the record and counsel has had no opportunity to explain his conduct (People v. Love, 57 N.Y.2d 998). Based on the existing record and viewed in totality, defendant was not deprived of meaningful representation at sentencing (People v. Baldi, 54 N.Y.2d 137; People v. Maisonette, 234 A.D.2d 27, lv denied 89 N.Y.2d 1013).
We perceive no abuse of sentencing discretion.
Concur — Sullivan, J.P., Williams, Tom and Andrias, JJ.