PEOPLE v. REYES (2005)

 On appeal from a judgment convicting him upon his plea of guilty of robbery in the first degree (Penal Law § 160.15[3] ), defendant contends that Supreme Court lost jurisdiction to impose sentence based on the seven-year delay between the entry of the plea and sentencing.   We agree.   Pursuant to CPL 380.30(1), a “[s]entence must be pronounced without unreasonable delay” and, “unless excused[, an unreasonable delay] result[s] in a loss of jurisdiction requiring dismissal of the indictment” (People v. Drake, 61 N.Y.2d 359, 367, 474 N.Y.S.2d 276, 462 N.E.2d 376).  “[W]here the delay is long and unexplained, the courts will hold it unreasonable” (id. at 366, 474 N.Y.S.2d 276, 462 N.E.2d 376).   We note, however, that a defendant “bears no burden to pursue his own sentencing” (People v. Hatzman [Appeal No. 1], 218 A.D.2d 185, 189, 637 N.Y.S.2d 866;  see Drake, 61 N.Y.2d at 362, 474 N.Y.S.2d 276, 462 N.E.2d 376).

Although it is undisputed that defendant absconded, it also is undisputed that the People had actual knowledge that defendant was incarcerated in Pennsylvania.   Defendant is thus “primarily responsible” for the portion of the delay before the People learned of his incarceration in Pennsylvania (People v. Pierre-Paul, 289 A.D.2d 262, 262, 734 N.Y.S.2d 854, lv. denied 97 N.Y.2d 732, 740 N.Y.S.2d 705, 767 N.E.2d 162;  see People v. Campbell, 306 A.D.2d 495, 761 N.Y.S.2d 834;  People v. Ragin, 302 A.D.2d 219, 753 N.Y.S.2d 717, lv. denied 99 N.Y.2d 655, 657, 760 N.Y.S.2d 119, 122, 790 N.E.2d 293, 296).   Once the People had knowledge that defendant was incarcerated in Pennsylvania, however, the delay is excusable only if the People made diligent efforts to secure defendant's presence in New York (see People v. Turner, 222 A.D.2d 206, 206-207, 634 N.Y.S.2d 685, lv. denied 88 N.Y.2d 855, 644 N.Y.S.2d 701, 667 N.E.2d 351;  People v. Reyes, 214 A.D.2d 233, 632 N.Y.S.2d 123, lv. denied 87 N.Y.2d 850, 638 N.Y.S.2d 609, 661 N.E.2d 1391).   Here, the record is devoid of any evidence that the People made any efforts to secure defendant's presence in New York.   Indeed, defendant pursued his own sentencing and, based on his own application, defendant appeared in court for sentencing three years before he was actually sentenced.   The People opposed sentencing defendant at that time, however, and defendant was returned to Pennsylvania.   Only after defendant had completed serving his Pennsylvania sentence did the People herein pursue sentencing.   Because the delay was long and unexplained, we conclude that the delay was unreasonable and the court lacked jurisdiction to impose the sentence (see generally People v. Monaghan, 34 A.D.2d 815, 311 N.Y.S.2d 722).   We therefore reverse the judgment, dismiss the indictment and remit the matter to Supreme Court for proceedings pursuant to CPL 470.45.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law, the indictment is dismissed and the matter is remitted to Supreme Court, Monroe County, for proceedings pursuant to CPL 470.45.

MEMORANDUM: