PEOPLE v. ANONYMOUS

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

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

Decided: March 29, 2005

ANDRIAS, J.P., SULLIVAN, WILLIAMS, GONZALEZ, CATTERSON, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Daniel W.E. Holt of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Walter J. Storey of counsel), for respondent.

Judgment, Supreme Court, New York County (Budd G. Goodman, J.), rendered September 12, 2002, convicting defendant, upon his plea of guilty, of criminal possession of a forged instrument in the third degree, and sentencing him to a conditional discharge for a period of 1 year, unanimously affirmed.

 The court properly denied defendant's various motions to dismiss the indictment, made on the ground of delay in sentencing.   We conclude that under the terms of his cooperation agreement, defendant agreed to all of the delay from his original plea of guilty to a felony, to his ultimate misdemeanor plea (see People v. Baez, 216 A.D.2d 121, 628 N.Y.S.2d 642 [1995] ).   Furthermore, this period of delay was for defendant's benefit, in that it provided him with an extended opportunity to earn a lenient disposition.   The record also establishes that defendant consented to the period of delay between his misdemeanor plea and September 21, 2001.   Defendant has not met his burden, as appellant (see People v. Olivo, 52 N.Y.2d 309, 320, 438 N.Y.S.2d 242, 420 N.E.2d 40 [1981] ), of providing minutes that might explain the delay between September 21, 2001 and the sentencing on September 12, 2002, and we do not find that delay to be unreasonable in any event.   While sentencing under a cooperation agreement may not be delayed indefinitely, we conclude that there were plausible reasons for all of the periods of delay in this case, and after balancing the pertinent factors, we conclude that the delay in sentencing was excusable (see People v. Drake, 61 N.Y.2d 359, 474 N.Y.S.2d 276, 462 N.E.2d 376 [1984] ).   We note that because of the unusual circumstances of this case, defendant, who originally pleaded guilty to a serious felony charge warranting a prison sentence, ultimately received everything he bargained for, to wit, a misdemeanor plea, a conditional discharge, and a certificate of relief from civil disabilities, and that he received all of this without having to fulfill his obligations under the cooperation agreement.