Opinion
106862
11-05-2015
The PEOPLE of the State of New York, Respondent, v. Amanda M. GILBERT, Appellant.
Susan Patnode, Rural Law Center of New York (Kelly L. Egan of counsel), Albany, for appellant. Nicole M. Duve, Special Prosecutor, Ogdensburg, for respondent.
Susan Patnode, Rural Law Center of New York (Kelly L. Egan of counsel), Albany, for appellant.
Nicole M. Duve, Special Prosecutor, Ogdensburg, for respondent.
Before: PETERS, P.J., McCARTHY, GARRY and ROSE, JJ.
Opinion
PETERS, P.J.Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered April 29, 2014, which revoked defendant's probation and imposed a sentence of imprisonment.
In March 2006, defendant pleaded guilty to two counts of grand larceny in the fourth degree and was sentenced to five years of probation. A declaration of delinquency was subsequently issued and, in March 2011, defendant admitted to violating the terms of her probation with the understanding that her probation would be revoked and that she would be resentenced to concurrent nine-month terms of incarceration. Resentencing was twice adjourned at defendant's request, each time with a warning from County Court that it would not be bound by the agreed-upon sentence if defendant failed to comply with the terms of her release. In August 2011, prior to the adjourned resentencing date, a uniform court report was submitted to County Court alleging that defendant violated the conditions of her release by, among other things, failing to report to her probation officer, and a bench warrant was issued for her arrest. Defendant thereafter failed to appear at the October 18, 2011 resentencing date and was not returned on the warrant until April 14, 2014, following her arrest on an unrelated matter. On April 29, 2014, County Court revoked defendant's probation and resentenced her to two consecutive terms of 365 days in jail.
Defendant's sole contention on appeal is that the delay in resentencing was so unreasonable as to divest County Court of jurisdiction over her (see CPL 380.30[1] ). However, defendant did not move to dismiss the declaration of delinquency on that ground, object to the delay or otherwise call into question County Court's jurisdiction to resentence her. Accordingly, she failed to preserve the issue for our review (see People v. Brooks, 118 A.D.3d 1123, 1124, 987 N.Y.S.2d 249 [2014], lv. denied 24 N.Y.3d 959, 996 N.Y.S.2d 218, 20 N.E.3d 998 [2014] ; People v. Dissottle, 68 A.D.3d 1542, 1543, 893 N.Y.S.2d 649 [2009], lv. denied 14 N.Y.3d 799, 899 N.Y.S.2d 133, 925 N.E.2d 937 [2010] ; People v. Cecere, 39 A.D.3d 557, 558, 831 N.Y.S.2d 723 [2007], lv. denied 9 N.Y.3d 873, 842 N.Y.S.2d 786, 874 N.E.2d 753 [2007] ; People v. Young, 283 A.D.2d 597, 597, 725 N.Y.S.2d 209 [2001], lv. denied 96 N.Y.2d 909, 730 N.Y.S.2d 808, 756 N.E.2d 96 [2001] ). In any event, “[o]nly delays that are inexcusable and unduly long violate the statutory directive” (People v. Tredeau, 117 A.D.3d 1344, 1345, 987 N.Y.S.2d 119 [2014] ; see People ex rel. Harty v. Fay, 10 N.Y.2d 374, 379, 223 N.Y.S.2d 468, 179 N.E.2d 483 [1961] ; People v. Arroyo, 22 A.D.3d 881, 882, 802 N.Y.S.2d 552 [2005], lv. denied 6 N.Y.3d 773, 811 N.Y.S.2d 340, 844 N.E.2d 795 [2006] ). Here, the delay was attributable to defendant's multiple adjournment requests, as well as her unlawful failure to appear on the adjourned resentencing date, and “the People do not have a duty to make efforts to apprehend an absconding defendant” absent evidence that they were actually aware of her whereabouts (People v. Carter, 91 A.D.3d 967, 967, 937 N.Y.S.2d 333 [2012], lv. denied 18 N.Y.3d 992, 945 N.Y.S.2d 647, 968 N.E.2d 1003 [2012] ; see People v. Reyes, 214 A.D.2d 233, 236, 632 N.Y.S.2d 123 [1995], lv. denied 87 N.Y.2d 850, 638 N.Y.S.2d 609, 661 N.E.2d 1391 [1995] ; People v. Headley, 134 A.D.2d 519, 519, 521 N.Y.S.2d 103 [1987], lv. granted 72 N.Y.2d 861, 532 N.Y.S.2d 511, 528 N.E.2d 901 [1988], appeal dismissed 72 N.Y.2d 931, 532 N.Y.S.2d 841, 529 N.E.2d 171 [1988] ). Thus, were we to consider the claim, we would find no violation of CPL 380.30.
ORDERED that the judgment is affirmed.
McCARTHY, GARRY and ROSE, JJ., concur.