Opinion
May 28, 1975
Motion by appellant for reargument of his appeal from a sentence of the Supreme Court, Queens County, imposed September 6, 1972. The sentence was affirmed by order of this court dated March 25, 1975. Motion for reargument granted and, upon reargument, said order dated March 25, 1975 is vacated and set aside, the sentence is reversed, on the law, and the case is remanded to the Criminal Term for the resentencing of defendant in accordance with the provisions of CPL 380.50. At the time of sentence, appellant was asked, "John Mentesana, do you know of any legal reason as to why the sentence of this Court should not be pronounced upon you?," to which the defendant answered, "No". That allocution was insufficient (People v Pennington, 47 A.D.2d 962). Although remanding for resentence because of the requirements of the statute, we point out that the action of defendant's counsel in this case is an exercise in futility and a waste of both his, the District Attorney's and the court's time. Defendant was sentenced on September 6, 1972 to an indeterminate term not to exceed four years and has been released on parole. The appeal was not brought on for consideration until this year. If defendant were serious about his excessive sentence claim he could have adopted the summary appeal procedure provided by this court and had his appeal heard a long, long time ago. While we are compelled by reason of the failure of the sentencing court to give defendant the proper allocution guaranteed to him by CPL 380.50, the procedural delay of defense counsel leaves much to be desired. Gulotta, P.J., Rabin, Hopkins, Martuscello and Shapiro, JJ., concur.