Opinion
134 KA 18–00162
03-15-2019
The PEOPLE of the State of New York, Respondent, v. Amin HOBBS, Defendant–Appellant.
ROBERT TUCKER, PALMYRA, FOR DEFENDANT–APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF COUNSEL), FOR RESPONDENT.
ROBERT TUCKER, PALMYRA, FOR DEFENDANT–APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal mischief in the fourth degree ( Penal Law § 145.00 [3 ] ) and unlawfully fleeing a police officer in a motor vehicle in the third degree (§ 270.25), defendant contends that County Court lost jurisdiction to impose sentence on those offenses due to an unreasonable delay between the entry of the plea and sentencing (see generally CPL 380.30[1] ). We reject that contention.
Defendant pleaded guilty in May 2014 to the two offenses in full satisfaction of the indictment and was released pending sentencing. After he was arrested in Monroe County, New York in August 2017, he moved pro se to dismiss that indictment on the ground that the court lost jurisdiction to sentence him due to the delay in imposing sentence. He asserted that he had moved to Colorado prior to the scheduled sentencing date and that he had been arrested several times and incarcerated there, but he provided no specific information concerning when or for how long he had been incarcerated. The People asserted that, although they knew that defendant had been living in Colorado, they were not aware that he had been incarcerated there.
We conclude that the court properly denied the motion without a hearing. Although an unreasonable delay in imposing sentence will cause a court to lose jurisdiction over a defendant, "[w]hen delay is caused by the conduct of the defendant which frustrates the entry of judgment, it is excusable" ( People v. Brazeau , 144 A.D.2d 977, 978, 534 N.Y.S.2d 634 [4th Dept. 1988], lv denied 73 N.Y.2d 889, 538 N.Y.S.2d 801, 535 N.E.2d 1341 [1989] ). Furthermore, "[w]here a delay in sentencing is due to an absconding defendant, the People are under no obligation to make efforts to apprehend the defendant to avoid a loss in jurisdiction" ( People v. Cook , 133 A.D.3d 775, 776, 21 N.Y.S.3d 140 [2d Dept. 2015], lv denied 27 N.Y.3d 1067, 38 N.Y.S.3d 838, 60 N.E.3d 1204 [2015] ). Here, defendant contends that the People had a duty to act diligently in securing his presence in New York because the People knew or should have known that he was incarcerated while in Colorado. We reject that contention inasmuch as the delay in sentencing was caused by defendant's conduct in absconding, and there is nothing in the record to suggest that the People had actual or constructive knowledge of defendant's incarceration in Colorado at any time while he was incarcerated there (see id. ; People v. Saunders , 93 A.D.3d 487, 487, 940 N.Y.S.2d 61 [1st Dept. 2012], lv denied 19 N.Y.3d 967, 950 N.Y.S.2d 119, 973 N.E.2d 217 [2012] ; People v. James , 78 A.D.3d 862, 863, 911 N.Y.S.2d 633 [2d Dept. 2010], lv denied 16 N.Y.3d 832, 921 N.Y.S.2d 196, 946 N.E.2d 184 [2011] ).