PEOPLE v. MALDONADO

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

The PEOPLE of the State of New York, Respondent, v. Monserate MALDONADO, Defendant-Appellant.

Decided: June 17, 2008

LIPPMAN, P.J., ANDRIAS, SWEENY, RENWICK, JJ. Steven Banks, The Legal Aid Society, New York (Mitchell J. Briskey of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Alice Wiseman of counsel), for respondent.

Judgment, Supreme Court, New York County (Robert Haft, J. at plea;  Brenda Soloff, J. at sentence), rendered February 28, 2007, convicting defendant of bail jumping in the second degree, and sentencing him, as a second felony offender, to a term of 1 1/212 to 3 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, 364-367, 474 N.Y.S.2d 276, 462 N.E.2d 376 [1984] ).   After defendant absconded while awaiting sentencing, and the People learned that he was serving a sentence in Puerto Rico, they made reasonably diligent efforts to have him returned to New York. When these efforts failed, defendant was released from custody, and he remained at large in Puerto Rico despite his awareness of his continuing obligation to appear for sentencing in New York. The People's duty to seek production of an incarcerated defendant is not implicated with respect to the delay that followed defendant's release, during which time he resumed the status of an absconder.   Accordingly, the lengthy delay in imposing sentence was “attributable almost entirely to defendant's conduct” (see 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] ).