| People v Reynolds |
| 2014 NY Slip Op 03340 [117 AD3d 478] |
| May 8, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Baasil Reynolds, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E.Knight of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel),for respondent.
Judgment, Supreme Court, New York County (Michael R. Sonberg, J., at plea andsentencing; Ruth Pickholz, J., at Outley hearing), rendered August 23, 2011,convicting defendant of criminal possession of a weapon in the third degree andmenacing in the second degree, and sentencing him, as a second felony offender, toconcurrent terms of two to four years and one year, respectively, unanimouslyaffirmed.
The court properly determined that defendant violated the "no-arrest" condition ofhis plea agreement, and thus forfeited the opportunity to have his conviction replaced bya misdemeanor conviction. After defendant challenged the validity of his new arrest, thecourt conducted a hearing pursuant to People v Outley (80 NY2d 702 [1993]),and the court's findings and determination comported with the standards articulated inOutley (see id. at 712-713). Defendant has not established that the hearingcourt employed a different standard from the "legitimate basis for the arrest" standard setforth in Outley (id. at 713).
We reject defendant's argument that his plea should be vacated as conditioned on anillegal sentence. The plea court proposed a plea bargain, accepted by defendant, wherebyafter pleading guilty to a felony defendant would be remanded for six months, afterwhich his sentencing would be delayed for an additional year, at which time he would bepermitted to replace his conviction with a misdemeanor plea if he met the conditions thathe have no new arrests and no violations of orders of protection. Regardless of what thecourt may have intended, and regardless of the merits of this arrangement, the period ofpresentencing detention was not part of the sentence. As a matter of law, the onlysentence was the undisputedly legal sentence imposed on August 23, 2011, against whichall prior detention was credited. The presentencing detention was based, instead, on asecuring order (see CPL 510.10). Such an order is not reviewable on an appealfrom a judgment of conviction (see People ex rel. Chakwin v Warden, N.Y. CityCorrectional Facility, Rikers Is., 63 NY2d 120, 125 [1984]), and, although CPL380.30 (1) requires reasonably prompt sentencing, defendant consented to the delay(see Matter of Weinstein v Haft, 60 NY2d 625 [1983]). Concur—Saxe,J.P., Moskowitz, Freedman, Gische and Kapnick, JJ.