| People v Jean-Louis |
| 2010 NY Slip Op 04881 [74 AD3d 1481] |
| June 10, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v WesleyJean-Louis, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Mercure, J.P. Appeals (1) from a judgment of the County Court of Albany County (Herrick,J.), rendered May 29, 2002, upon a verdict convicting defendant of the crimes of criminal sale ofa controlled substance in the third degree and criminal possession of a controlled substance inthe third degree (two counts), and (2) by permission, from an order of said court, enteredFebruary 5, 2009, which denied defendant's motion pursuant to CPL 440.20 to vacate thesentence, without a hearing.
In 2001, defendant was charged in separate indictments with criminal sale of a controlledsubstance in the third degree and two counts of criminal possession of a controlled substance inthe third degree. County Court consolidated the indictments, and defendant was released on bailwith a Parker admonishment advising him of the consequences of failing to appear fortrial. At 10:45 a.m. on March 25, 2002, the day of trial, defendant told counsel that he was goingto get something to eat and would meet him at the courthouse before noon, the time that trial wasscheduled to begin. Defendant did not appear, trial was delayed until the next day, and a benchwarrant was issued for his arrest. After attempts to reach defendant failed and an investigationrevealed that defendant had informed a family member that he was not going to appear in court,County Court determined that defendant waived his right to be present. Following a jury trialconducted in absentia, defendant was found guilty as charged and sentenced—again inabsentia inasmuch as defendant continued to secrete himself despite [*2]multiple adjournments and a diligent search for him by the Sheriff'sDepartment and United States Marshals Service—to 12 to 36 years in prison.
Defendant next appeared more than six years later when he was arrested in November 2008and remanded to the custody of the sheriff to serve his sentence. Thereafter, defendant filed amotion to vacate his sentence pursuant to CPL 440.20, asserting that (1) the sentence was illegalunder the subsequently enacted Rockefeller Drug Reform Act, (2) invalid because he neveradmitted that he knew of his trial date, and (3) harsh and excessive. County Court denied themotion without a hearing, and defendant appeals from the judgment and the denial of his CPL440.20 motion.
Defendant's appeal from the May 29, 2002 judgment of conviction must be dismissedinasmuch as the appeal was not timely taken and there is no basis for an extension under thecircumstances presented herein (see CPL 460.10 [1] [a]; 460.30 [1]; People vTorres, 179 AD2d 358 [1992]; People v Doyne, 178 AD2d 870, 871 [1991]; cf.People v Thomas, 47 NY2d 37, 43-45 [1979]; People v McCloud, 38 AD3d 1056, 1056 [2007], lvdismissed 8 NY3d 947 [2007]). To the extent that defendant argues, in connection with hisCPL 440.20 motion, that he was improperly sentenced in absentia, his argument is unsupportedby the record. Defendant concedes that his sentence is otherwise legal, and his claim that hissentence was harsh and excessive may not be raised on a CPL 440.20 motion (see People v Boyce, 12 AD3d728, 730 [2004], lv denied 4 NY3d 741 [2004]; People v Cunningham, 305AD2d 516, 517 [2003]; see also Peoplev Murphy, 37 AD3d 976, 977 [2007]).
Peters, Spain, Rose and Kavanagh, JJ., concur. Ordered that the appeal from the judgment isdismissed. Ordered that the order is affirmed.