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Defense Contends Unreasonable Delay in Sentencing


Defendant is a violent predicate felon. On June 6, 1996, he entered a plea of guilty to the crime of assault in the second degree pursuant to Penal Law, Sec. 120.05(7), a subdivision which is applicable to assaults committed inside a prison facility. A New York Criminal Lawyer said he had been charged with three counts of this crime for viciously assaulting three correction officers with a sharpened toothbrush while being housed at the Rikers Island Correction Facility. At the time, he was incarcerated there under an earlier New York County indictment to answer for the crime of attempted rape in the first degree, more specifically, for forcibly throwing a woman to the ground on 42nd Street while shouting obscenities, demanding sexual intercourse and threatening death. With respect to the attempted rape charge, defendant, one-and-one-half years prior to the entry of the within plea entered a plea of guilty in satisfaction thereof. Despite the elapsation, now, of two years, he has yet to be sentenced in New York County.

A New York Criminal Lawyer said that, notwithstanding, and following four monthly adjournments before this bench, he claims a violation of C.P.L. 380.30(1), moving to divest the Court of jurisdiction that his conviction be vacated and the accusatory instrument dismissed. Defendant contends a failure to pronounce sentence “without unreasonable delay” has prejudiced him. By way of explanation, he sets forth that the 24 months of postponements of sentencing in New York County has been by acquiescence. The Court denied his motion.
The issue in this case is whether defendant is entitled to the dismissal of his case on the ground of failure to pronounce sentence without unreasonable delay.

By requiring a court to fix a specific date for sentencing following conviction, C.P.L. 380.30(1) seeks not only to promote the efficient disposition of cases, but encompasses the Sixth Amendment right to a speedy trial to the extent that such right likewise embraces post-conviction proceedings. Prompt sentencing is an important goal of the criminal justice system in terms of fairness to both the public and a defendant.

A Nassau Criminal Lawyer said despite a dearth of cases on this issue, an analysis of the history, practice and purposes for deferring sentence suggests one conclusion: under reasonable circumstances and for a reasonable period of time, superior courts of criminal jurisdiction enjoy a common law power to postpone the imposition of. The Criminal Procedure Law mandate that “sentence must be pronounced without unreasonable delay” is straightforward. But sentencing can be deferred reasonably, a flexible standard in substitution for the rather rigid one extant prior to enactment of the current Criminal Procedure Law in 1970.
Precisely what is “reasonable” and how reasonable it must be proven to be is left undefined. This necessarily provides for broad judicial discretion that must be applied on a case-by-case basis. In furtherance, before pronouncing sentence, the court may hold one or more pre-sentence conferences in order to (a) resolve any discrepancies between the pre-sentence report, or other information the court has received or (b) assist the court in its consideration of any matter relevant to the sentence to be pronounced. This provision can be read as legislative authority to defer sentencing in order that conflicts be resolved and doubtful points.

In People ex rel. Harty v. Fay, the Court of Appeals held that “a long and unnecessary failure to sentence results in lack of jurisdiction,” thus rendering any subsequent imposed sentence void. “Where the delay is long and unexplained, the courts will hold it unreasonable”. The Court said that, defendant’s reliance on Fay and Drake, however, is misplaced. Here we treat with deferral not delay, deferral for appropriate reasons and definite periods of time, not delay by way of passive inactivity or unexplained failure to impose sentence.

Defendant’s Pre-Sentence Investigation report, for instance, notes that “the defendant denies his guilt and stated that he pled guilty ‘to get case over.” Surely the interest of justice will not permit an accused to be sentenced for a crime he now places in doubt. Nor has this doubt yet been clarified, as it must, orally from the mouth of Defendant. Counsel’s assurance that defendant stands by the allocution he now places in question is insufficient as a matter of law.
The bargain struck in New York County was particularly aimed at avoiding the imposition of an expected consecutive sentence. Indeed, the court clearly stated it: “The Court will then adjourn sentencing for however long you need so this sentence gets imposed after the sentence in The Bronx, and, therefore, defendant not at risk of any possible consecutive time.” The record is devoid of objection by the People.

Respecting Defendant’s consent to adjournments in New York County where he is awaiting disposition of the attempted rape charge, the period of deferral caused thereby, at least since June 6, 1996 when he entered the within plea, is of his own making. His is a futile and mistaken attempt to frustrate the entry of consecutive judgment herein, the within protestation notwithstanding. Defendant’s consents there renders the deferrals here excusable, and Defendant is held to be estopped from asserting a violation before this bench inasmuch as his own conduct substantially contributed to the claimed delay. Passage of time, standing alone, does not bar imposition of sentence or require a defendant’s discharge.

A New York Sex Crimes Lawyer said the defendant committed his crime in New York County prior to that committed here; he was indicted in New York County prior to his indictment here; he pled guilty in New York County prior to the entry of his guilty plea here. Logic would follow that Mr. Smith be sentenced in New York County prior to the imposition of sentence here. Nor was Defendant unaware, as amply demonstrated on this record, that the Court deferred sentencing on four occasions while awaiting same.

Herein, Defendant pled guilty to Penal Law Section 120.05(7). Conviction of assault in the second degree, that is, an assault committed inside a prison facility, presumptively requires the imposition of a consecutive sentence. Because of the range of dispositions that may otherwise have occurred or been available to defendant under the within indictment, only divination would have allowed a court presiding over his earlier plea allocution to be able to fulfill a promise based on the assumption that Defendant, in futuro, could avoid being treated more harshly.

Notwithstanding, the eighteen month removed outcome of defendant’s Bronx County case, both in terms of the plea entered to a specific crime mandating the imposition of a consecutive sentence, as well as a fully allocuted agreement to the condition for its imposition, that is, “consecutive to the sentence you will receive in New York County ” is not simply controlling, but now makes fulfillment of the New York County promise impossible to honor; indeed, in light of the foregoing, legally improper.

Prior to imposition of sentence by this Court, defendant’s case is yet subjudice and cannot be within the discretion or control of any other authority; and, following the imposition of sentence, only the ministerial task of executing punishment in accordance with law remains.

Such being the case, the Court’s analysis of the within offense and defendant’s extensive prior history of menacing society by violent behavior on a continuing basis, including the New York County episode awaiting final disposition this being his fourth felony conviction finds that he is not deserving of consideration for mitigation of the required harsher treatment where a consecutive sentence is otherwise mandated.

In sum, the Court held that whether dismissal is warranted depends upon the length of the delay and the reasons for it. Generally, where the delay is long and unexplained, the courts will hold it unreasonable. Conversely, where the delay is not protracted and plausible reasons are offered to explain it, the courts hold that it is not unreasonable. That the interest of justice be served, defendant’s consecutive sentence will be visited prospectively upon him at the appropriate moment, that is, when he is afforded at least the opportunity to unequivocally affirm his allocution of guilt.

The Criminal Procedure Law mandate that “sentence must be pronounced without unreasonable delay” is straightforward. If you are charged or convicted of a sex crime in violation of this rule, you need the help of a New York Criminal Attorney and/ or New York Rape Attorney at Stephen Bilkis and Associates. We can handle your case properly. Call us for free legal advice.

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