People v Gomez
Annotate this CaseDecided on June 15, 2005
Criminal Court, New York County
The People of the State of New York
against
Jose Gomez, Defendant.
2003 NY 069978
Deborah Kaplan, J.
The defendant is charged with Aggravated Unlicensed Operation of a Motor Vehicle (Vehicle and Traffic Law §511[2][a][iv]) and Unlicensed Driving (Vehicle and Traffic Law §509[1]) upon an information which alleges that on October 16, 2003, he operated a Ford van while his driver's license or privilege to drive was suspended for failure to answer several summonses. On October 17, 2003, he pled guilty to Aggravated Unlicensed Operation of a Motor Vehicle in exchange for a promised sentence of probation, a $500 fine and payment of all outstanding traffic tickets. The case was adjourned to December 15, 2003, for sentencing. The defendant failed to appear on that date and a warrant was ordered. He was rearrested and returned on the warrant the following year, on November 10, 2004. The defendant now moves (1) to dismiss the information on the ground of unlawful delay in sentencing or, in the alternative, (2) to relieve the Legal Aid Society as defense counsel or, in the alternative, (3) to withdraw his guilty plea. For the reasons set forth below, the defendant's motions are denied in their entirety.
I. Motion to Dismiss the Information
Pursuant to CPL § 380.30(1), a "[s]entence must be pronounced without unreasonable delay" and, unless excused, an unreasonable delay will result in a loss of jurisdiction. People v Drake, 61 NY2d 359, 367 (1984). In determining whether there has been an unreasonable delay, the court must examine the length of the delay and the reasons for it. See People v Drake, supra; People v Peterson, 264 AD2d 574, 576 (1st Dept. 1999). A protracted delay which is the product of judicial or prosecutorial negligence or mistake, as opposed to the defendant's own conduct, divests the court of jurisdiction to sentence the defendant. See People v Campbell, 97 NY2d 532 (2002); People v Drake, supra; Matter of Weinstein v Haft, 60 NY2d 625 (1983). Conversely, a lengthy delay which is "caused by legal proceedings or other conduct of the defendant which frustrates the entry of judgment, [] is excusable." People v Drake, supra at 366. "A defendant who is primarily responsible for a sentencing delay will not be allowed to benefit from it." People v Marshall, 228 AD2d 15, 17 (2nd Dept. 1997); see People v Reyes, 214 AD2d 233 (1st Dept. 1995); see also People v Anonymous, 16 AD3d 317 (1st Dept. 2005) [defendant [*2]agreed to delay under terms of cooperation agreement]. As such, a defendant who absconds prior to sentencing will not be heard to argue that the People failed to exercise due diligence in apprehending him and producing him for sentencing. See People v Chase, 306 AD2d 167 (1st Dept. 2003); People v Davidson, 158 AD2d 317 (1st Dept. 1990); People v Headley, 134 AD2d 519 ( 2nd Dept. 1987).
"In the context of CPL 380.30(1) cases, [the People's] 'knowledge' of an absconded defendant's whereabouts has been effectively equated with incarceration, and the People have been held to have a duty to exercise due diligence where they knew or should have known the defendant was incarcerated." People v Reyes, supra at 236; see e.g. People v Reyes, 15 AD3d 868 (4th Dept. 2005) [People had actual knowledge that defendant was incarcerated in Pennsylvania during seven-year delay between plea and sentence]. However, the First Department has held that where the defendant has absconded and failed to appear for sentencing, the People are under no obligation to pursue him. See People v Chase, supra, People v Davidson, supra. The due diligence requirement of CPL § 30.30 (4)(c) is not applicable to CPL § 380.30(1) since "the People should not be so burdened in this context." People v Reyes, supra, 214 AD2d at 236; see People v Headley, supra.
In the instant case, the defendant, after failing to appear for sentencing on December 15, 2003, was involuntarily returned on a warrant on November 10, 2004 when he was arrested and charged with Criminal Sale of Marijuana in the Fourth Degree (Penal Law § 221.40) and Unlawful Possession of Marijuana (Penal Law § 221.05). Contrary to the defendant's contention, the fact that the instant case was not resolved at the same time as the defendant's new criminal matter does not serve to divest the court of jurisdiction. A defendant who fails to fulfill the obligations of his plea agreement and fails to appear for sentencing may not escape the consequences by being rearrested and reprocessed through the criminal justice system. The defendant does not allege that he was incarcerated on the date he was directed to return to court for sentencing and court records show he did not serve any jail sentence on the new case. He simply failed to appear for sentencing in accordance with his plea agreement. In this regard, the court notes that the defendant's criminal history indicates that he has used three different names, three different dates of birth and three different places of birth in a concerted effort to evade legal process. See People v Chase, supra; People v McQuilken, 249 AD2d 35 (1st Dept. 1998); People v Lopez, 228 AD2d 395 (1st Dept. 1996). Moreover, even if the delay in this case were "excusable" within the meaning of CPL § 380.30(1), the length of the delay between plea and sentence, being only one year, was not so "unreasonable" as to require dismissal of the information. See People v Anonymous, supra; People v Hendricks, 13 AD3d 61 (1st Dept. 2004); People v Reyes, supra [three years].
Accordingly, the defendant's motion to dismiss the information pursuant to CPL § 380.30(1) is denied.
II. Motion to Relieve Counsel
The defendant's instant motion papers include a request to relieve the Legal Aid Society as defense counsel. However, counsel proffers no reason for requesting such relief. In any event, counsel previously moved for the same relief and that motion was denied by this court (Murphy, J.) on March 4, 2005. Any motion to reargue must be made before Judge Murphy. See CPLR § 2221. Counsel is cautioned against making successive requests for the same relief in a court of [*3]co-ordinate jurisdiction.
III. Motion to Withdraw Plea of Guilty
The defendant's motion to withdraw his plea is also without merit. The record of the plea allocution reveals that the defendant's plea was knowingly, voluntarily and intelligently made. See People v Fiumefreddo, 82 NY2d 536 (1993); People v Harris, 61 NY2d 9 (1984); People v Frederick, 45 NY2d 520 (1978). After consultation with defense counsel, an experienced attorney, the defendant stated on the record that he wished to plead guilty to the charge of Aggravated Unlicensed Operation of a Motor Vehicle in satisfaction of Docket No. 2003NY069978, that no one had forced him to plead guilty and that no promises were made to him other than the promised sentence. The defendant told the court that he understood that by pleading guilty he was giving up his right to a trial in this case. Indeed, in addition to answering the court's inquiries, the defendant engaged in a lengthy colloquy on the record with defense counsel, the assistant district attorney and the court concerning his sentence, including his probation reporting requirements and his ability to pay the fine and outstanding tickets, as well as the conditions of his release pending sentencing. The court explained to the defendant that if he was rearrested before the date of sentencing or if he failed to fulfill any condition of his plea agreement, he would face a jail sentence. The defendant told the court that he understood. The defendant made no statement to negate an essential element of the crime or suggest a viable defense so as to require further inquiry by the court. See People v Toxey, 86 NY2d 725 (1995); People v Lopez, 71 NY2d 662 (1988); People v Mastridge, 295 AD2d 626 (2nd Dept. 2002); People v Christian, 287 AD2d 273 (1st Dept. 2001). Nor does the record corroborate the defendant's contention that he, his counsel, or the court was confused about any term of the plea agreement. The court notes that, having been convicted upon a plea of guilty on eight prior occasions, the defendant was not unfamiliar with the criminal justice system and, in particular, was quite experienced in plea proceedings. See People v Frederick, supra; People v Senghor, 248 AD2d 299 (1st Dept. 1998); People v Maietta, 173 AD2d 17 (1st Dept. 1991).
The defendant does not now assert his innocence but claims that his "history of mental health problems" or his unspecified "physical disability" precluded entry of a valid plea. The defendant's claim is wholly unsupported and, in fact, is belied by the plea record which shows that his plea was knowing and voluntary. See People v Alexander, 97 NY22d 482 (2002); People v Dowdey, 14 AD3d 438 (1st Dept. 2005); People v Smith, 5 AD3d 1095 (4th Dept. 2004). Since the defendant has failed to raise sufficient facts or grounds to require a hearing, his request for one is denied. Indeed, unlike here, where the defendant's claims are unsubstantiated, even where the defendant produces evidence of mental health problems, a hearing is not necessarily required. See People v Smith, supra; People v D'Adamo. 281 AD2d 751 (3rd Dept. 2001). This is because a history of mental health problems, without more, "does not necessarily render a defendant incompetent to enter a knowing and voluntary plea." People v Barclay, 1 AD3d at 705 (3rd Dept. 2003); see People v Mears, 16 AD2d 917 (3rd Dept. 2005); People v Dowdey, supra; People v Klein, 11 AD3d 959 (4th Dept. 2004). Thus, this case does not present one of "the rare instance[s]" where a defendant is entitled to an evidentiary hearing on his motion to withdraw a plea. People v Tinsley, 35 NY2d 926, 927 (1974); see People v Frederick, supra.
Accordingly, the defendant's motion to withdraw his plea of guilty is denied in its [*4]entirety.
(IV) Conclusion
The defendant's motions (1) to dismiss the information on the ground of unlawful delay in sentencing or, in the alternative, (2) to relieve the Legal Aid Society as defense counsel or, in the alternative, (3) to withdraw his guilty plea, are denied in their entirety.
Dated: June 15, 2005 _________________________________________
Judge of the Criminal Court
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