PEOPLE v. BONILLA (2025)

Judgment, Supreme Court, Bronx County (Robert A. Neary, J. at CPL 30.30 motion;  Ralph Fabrizio, J. at trial and sentence), rendered January 13, 2020, convicting defendant, after a jury trial, of promoting prostitution in the fourth degree and two counts of criminal obstruction of breathing or blood circulation, and sentencing him to a jail term of 364 days on the promoting prostitution charge to run concurrently with a six-month term on one criminal obstruction charge and consecutively with another six-month term on the other criminal obstruction charge, unanimously modified, on the law, to the extent of vacating the sentence and remanding for resentencing, and otherwise affirmed.

The 56–day period from October 24 to December 19, 2018, was excludable because defendant, unbeknownst to the People, was detained by Immigration and Customs Enforcement (ICE) (CPL 30.30[4][e]).  In addition, the record demonstrates that upon notification by defense counsel of defendants’ ICE detention, the People acted with “reasonable and diligent efforts in obtaining defendant from” federal custody (People v. Cain, 291 A.D.2d 326, 327, 737 N.Y.S.2d 852 [1st Dept. 2002], lv denied 98 N.Y.2d 673, 746 N.Y.S.2d 462, 774 N.E.2d 227 [2002]).  Because that period is dispositive of defendant's speedy trial motion, we need not reach defendant's other contentions (People v. Capellan, 38 A.D.3d 393, 394, 833 N.Y.S.2d 20 [1st Dept. 2007], lv denied 9 N.Y.3d 873, 842 N.Y.S.2d 785, 874 N.E.2d 752 [2007]).

Following defendants request for a new attorney, the court was not required to make further inquiry into defendant's pro se motion to substitute counsel, because “defendant effectively withdrew his request and voluntarily agreed to continue with the same counsel” (People v. Scott, 172 A.D.3d 543, 544, 100 N.Y.S.3d 260 [1st Dept. 2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 629, 134 N.E.3d 628 [2019]).  The court's comments to defendant advising him that new counsel would need time to become familiar with the case, and that a new jury would have to be selected at a later time, further delaying the proceedings were not coercive, and the court did not deny defendant's request on that basis (cf.  People v. Bryan, 31 A.D.3d 295, 295–296, 818 N.Y.S.2d 217 [1st Dept. 2006]).

We vacate the sentence and remand the matter for resentencing because the court failed to determine defendant's youthful offender status on the record (see People v. Catlett, 196 A.D.3d 418, 146 N.Y.S.3d 780 [1st Dept. 2021]).  Because we are remanding for resentencing, we do not reach defendant's claim that the surcharge and fees imposed on defendant at sentencing should be vacated.