PEOPLE v. ORTIZ

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Carlos ORTIZ, Defendant-Appellant.

Decided: March 26, 2009

ANDRIAS, J.P., GONZALEZ, BUCKLEY, ACOSTA, JJ. Steven Banks, The Legal Aid Society, New York (Sheilah Fernandez of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), for respondent.

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered August 1, 2007, as amended June 19, 2008, convicting defendant, upon his plea of guilty, of attempted burglary in the second degree, and sentencing him, as a second violent felony offender, to a term of 2 1/212 to 5 years, unanimously affirmed.

The court properly denied defendant's motion to dismiss the indictment, made on the ground of delay in sentencing (see CPL 380.30[1];  People v. Drake, 61 N.Y.2d 359, 366, 474 N.Y.S.2d 276, 462 N.E.2d 376 [1984] ).   Defendant failed to appear for sentencing as the result of being arrested on another charge, at which time he gave false pedigree information.   After he was released from custody on the new charge, he failed to return to court for sentencing on this case, and he then evaded being returned for sentencing by giving various aliases and false pedigree information in connection with his many subsequent arrests and incarcerations in New York. As the 18-year delay in sentencing was attributable to defendant's conduct, his claim that the delay was unreasonable is unavailing (see e.g. People v. Allen, 309 A.D.2d 624, 766 N.Y.S.2d 24 [2003], lv. denied 1 N.Y.3d 567, 775 N.Y.S.2d 784, 807 N.E.2d 897 [2003];  People v. Chase, 306 A.D.2d 167, 760 N.Y.S.2d 327 [2003], lv. denied 100 N.Y.2d 619, 767 N.Y.S.2d 402, 799 N.E.2d 625 [2003];  People v. McQuilken, 249 A.D.2d 35, 670 N.Y.S.2d 102 [1998], lv. denied 92 N.Y.2d 901, 680 N.Y.S.2d 65, 702 N.E.2d 850 [1998];  cf. People v. Sigismundi, 89 N.Y.2d 587, 657 N.Y.S.2d 381, 679 N.E.2d 620 [1997] ).   There is no merit to defendant's suggestion that even if a defendant schemes to avoid detection, law enforcement authorities are still responsible for the delay if more efficient methods would have foiled the scheme at an earlier date;  such an argument is akin to an escapee contending that the pursuing officer should have run faster.