the State and its agents (supra, at 366-367). Other decisions have held that a court did not lose jurisdiction to sentence a defendant who absconded (Matter of Root v Kapelman, 67 A.D.2d 131, lv denied 47 N.Y.2d 706); that where delay is due to an absconding defendant, the People are not required to make efforts to apprehend him to avoid a loss of jurisdiction (People v Davidson, 158 A.D.2d 317, 318, lv denied 75 N.Y.2d 965); that while there is a duty to diligently proceed against a defendant whose location is known, the People should not be burdened with a duty to attempt to apprehend an absconding defendant, so as to avoid losing jurisdiction (People v Headley, 134 A.D.2d 519, appeal dismissed 72 N.Y.2d 931); and that "a delay — even a lengthy one — that is brought about solely by a defendant's flight will not divest the court of jurisdiction, but it will have that effect where the People have failed to make a diligent effort to proceed against the absconder [citations omitted]" (People v Miller, 130 A.D.2d 449, 450). The question at issue here is one of first impression and we hold that the delay was excusable inasmuch as it was caused by defendant's conduct in absconding, which frustrated entry of judgment (People v Drake, supra, at 366; People v Davidson, supra; People v Headley, supra; People ex rel. Dinitz v Hunter, 130 A.D.2d 533, 534-535).

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).

The evidence submitted by the prosecution casts doubt on whether the New York City Police Department actually received such notice. It was therefore error to dismiss the indictment without holding a hearing to resolve this factual dispute ( see, People v Miller, 130 AD2d 449; see also, People v Sigismundi, 89 NY2d 587). If the New York authorities were not actually aware of the defendant's incarceration, then the motion should be denied ( see, People v Davidson, 158 AD2d 317; People v Battles, 150 AD2d 785; People v Headley, 134 AD2d 519).

The "burden rests upon the prosecutor and the court to conclude the proceedings with reasonable promptness and the failure to do so may result in a loss of jurisdiction * * * [I]n all cases the initiative rests with the court and the prosecution, not the defendant" (People v Drake, 61 N.Y.2d 359, 362). In the absence of a sufficient record to permit appellate review of the explanation offered to excuse the delay in sentencing, the "issue can only be resolved at a hearing where the underlying facts can be developed and evaluated" (People v Miller, 130 A.D.2d 449, 450-451, citing People v McLaurin, 38 N.Y.2d 123, 126). Concur — Sullivan, J.P., Rosenberger, Ross, Rubin and Williams, JJ.

Since, by his own actions, defendant caused the delay in sentencing (see, People v Drake, 61 N.Y.2d 359, 366), and since the People had no actual knowledge of defendant's location during the 12 years (cf., People v Miller, 130 A.D.2d 449), the People had no duty "to make efforts to apprehend [the] absconding defendant so as to avoid a loss of jurisdiction". (People v Headley, 134 A.D.2d 519, appeal dismissed 72 N.Y.2d 931.)

The delay was due to the defendant's several escapes from custody during which his whereabouts were unknown for considerable periods of time. The defendant did not allege any facts indicating that the prosecution knew of his whereabouts and could have had him returned for sentence (see, People v. Headley, 134 A.D.2d 519; People v. Miller, 130 A.D.2d 449). Contrary to the defendant's further contention, the sentence imposed by the court was neither harsh nor excessive under the circumstances (see, People v. Suitte, 90 A.D.2d 80). Mangano, J.P., Lawrence, Kooper and Sullivan, JJ., concur.

Once again, an unjustified burden is placed on the criminal justice system.See, e.g., People v Hockett, 121 A.D.2d 878, 879 (dissent), after remand 128 A.D.2d 393, 394 (dissent); People v Boulware, 130 A.D.2d 370, 375 (dissent), appeal dismissed 70 N.Y.2d 994; People v Miller, 130 A.D.2d 449, 451 (dissent); People v Mosley, 136 A.D.2d 500, 501 (dissent). The defendant has been continually incarcerated, and therefore any presentence report could only cover his time in prison.

Once again, an unjustified burden is being placed on the criminal justice system. (See, People v Miller, 130 A.D.2d 449, 451 [dissent].) The Calendar Judge made it quite clear that he saw no identification issue because the complainant knew the defendant "from the building" and stated there was no need for a Wade hearing, and if the defense wanted to put identification in issue, it should do so "within the next two weeks."

Where the delay between adjudication of guilt and pronouncement of sentence "is caused by legal proceedings or other conduct of the defendant which frustrates the entry of judgment, it is excusable" (People v. Drake, supra, at 366), even where the delay is lengthy (cf., People v. Miller, 130 A.D.2d 449). We decline to impose upon the People a duty to make efforts to apprehend an absconding defendant so as to avoid a loss of jurisdiction (cf.

In People v. Drake ( 61 N.Y.2d 359, 366-367), the Court of Appeals identified three typical categories of delayed sentencing cases: (1) An extended delay which has no explanation constitutes unreasonable delay; (2) An unprotracted delay for which there is a plausible explanation does not constitute unreasonable delay; (3) An extended delay for which there is a plausible explanation requires a balancing of several factors by the court. (See also, Matter of Weinstein v. Haft, 60 N.Y.2d 625; People ex rel. Harty v. Fay, 10 N.Y.2d 374; People v. Miller, 130 A.D.2d 449 [1st Dept. 1987]; Matter of Root v. Kapelman, 67 A.D.2d 131 [1st Dept. 1979]; People v. Battles, 150 A.D.2d 785 [2d Dept. 1989]; People v. Headley, 134 A.D.2d 519 [2d Dept. 1987]; People ex rel. Dinitz v. Hunter, 130 A.D.2d 533 [2d Dept. 1987]; People v. Monaghan, 34 A.D.2d 815 [2d Dept. 1970]; People v. Newcombe, 18 A.D.2d 1087 [2d Dept. 1963].) There exists a fourth potential kind of delayed sentencing case: a relatively unprotracted delay for which no explanation whatsoever, plausible or otherwise, has been proffered by the People.