PEOPLE v. COOPER

Reset A A Font size: Print

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

The PEOPLE of the State of New York, Respondent, v. Kenneth COOPER, Appellant.

Decided: February 25, 1999

Before:  CARDONA, P.J., MIKOLL, MERCURE, CREW III and YESAWICH JR., JJ. Michael C. Ross, Bloomingburg, for appellant. Beth G. Cozzolino, District Attorney (George J. Hoffman Jr. of counsel), Hudson, for respondent.

Appeals (1) from a judgment of the County Court of Columbia County (Czajka, J.), rendered October 9, 1996, convicting defendant upon his plea of guilty of the crimes of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the seventh degree (two counts), and (2) by permission, from an order of said court, entered April 27, 1998, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence, without a hearing.

Defendant pleaded guilty to two counts of the crime of criminal sale of a controlled substance in the third degree and two counts of the crime of criminal possession of a controlled substance in the seventh degree and was sentenced as a second felony offender to concurrent indeterminate sentences of 7 1/212 to 15 years.   Defendant's subsequent motion pursuant to CPL 440.20 for vacatur of his sentence was denied, and he now appeals from both the judgment of conviction and the order denying his CPL 440.20 motion.

 Defendant bases his appeal from the judgment of conviction upon his contention that his due process rights were violated by the approximately seven-month preindictment delay.   We disagree.   The five factors to be considered when determining whether a defendant's due process right to prompt prosecution has been violated are “(1) the extent of the delay;  (2) the reason for the delay;  (3) the nature of the underlying charge;  (4) whether * * * there has been an extended period of pretrial incarceration;  and (5) whether * * * there is any indication that the defense has been impaired by reason of the delay” (People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303).   Here, approximately seven months elapsed between the perpetration of the criminal acts and defendant's indictment.   Delays of similar length have been found not to have violated due process principles (see, People v. Fike, 221 A.D.2d 732, 633 N.Y.S.2d 660 [71/212-month delay not unreasonable];  People v. Allende, 206 A.D.2d 640, 642, 614 N.Y.S.2d 612, appeal dismissed 84 N.Y.2d 921, 621 N.Y.S.2d 510, 645 N.E.2d 1209 [eight-month delay not unreasonable] ).   It also should be noted that defendant was not incarcerated until his arraignment on the instant indictment.   Finally, defendant failed to demonstrate that the delay prejudiced the preparation of his defense in any way.   Accordingly, we conclude that defendant's due process rights were not compromised.

 We also disagree with defendant's contention that his concurrent prison sentences are harsh and excessive.   Defendant's extensive criminal history, including a prior felony conviction, together with the lack of any evidence of extraordinary circumstances meriting a reduction, lead us to conclude that the sentence imposed by County Court should not be disturbed (see, People v. Wilson, 210 A.D.2d 520, 523, 620 N.Y.S.2d 135, lv. denied 85 N.Y.2d 982, 629 N.Y.S.2d 742, 653 N.E.2d 638;  People v. Powell, 209 A.D.2d 879, 882, 619 N.Y.S.2d 788, lv. denied 84 N.Y.2d 1037, 623 N.Y.S.2d 193, 647 N.E.2d 465).

 We similarly are unpersuaded by defendant's contention, set forth on his appeal from the denial of his CPL 440.20 motion, that the judgment of conviction should have been vacated upon the ground that County Court failed to adhere to the terms of the plea bargain agreement.   The record discloses that there was no plea bargain agreement in this matter either at the time defendant entered his guilty plea or at the time of sentencing.   At the plea hearing, County Court asked defendant whether he understood that no promises had been made in exchange for his plea and that he could be sentenced to a prison term of 25 years.   Defendant answered in the affirmative, with defense counsel stating that defendant would “leave sentencing to your Honor”.   We therefore conclude that there is no ground upon which to disturb the sentence imposed by County Court (see, People v. Pullman, 126 A.D.2d 260, 262-263, 513 N.Y.S.2d 534).

 Equally without merit is defendant's contention that a hearing should have been held to enable him to contest his status as a second felony offender.   Defendant freely admitted at the sentencing hearing before County Court that he previously had been convicted of a class C felony.   By his failure to challenge the use of this prior conviction and his failure to request a hearing on the issue of its validity prior to the imposition of sentence, defendant waived his right to a subsequent hearing (see, People v. Crippa, 245 A.D.2d 811, 812, 666 N.Y.S.2d 781, lv. denied 92 N.Y.2d 850, 677 N.Y.S.2d 80, 699 N.E.2d 440;  People v. Polanco, 232 A.D.2d 674, 675, 648 N.Y.S.2d 56).   Defendant's remaining contentions have been examined and found to be without merit.

ORDERED that the judgment and order are affirmed.

CREW III, J.

CARDONA, P.J., MIKOLL, MERCURE and YESAWICH JR., JJ., concur.

Copied to clipboard