| People v Gilbert |
| 2015 NY Slip Op 08011 [133 AD3d 928] |
| November 5, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAmanda M. Gilbert, Appellant. |
Susan Patnode, Rural Law Center of New York (Kelly L. Egan of counsel), Albany,for appellant.
Nicole M. Duve, Special Prosecutor, Ogdensburg, for respondent.
Peters, P.J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered April 29, 2014, which revoked defendant's probation andimposed a sentence of imprisonment.
In March 2006, defendant pleaded guilty to two counts of grand larceny in the fourthdegree and was sentenced to five years of probation. A declaration of delinquency wassubsequently issued and, in March 2011, defendant admitted to violating the terms of herprobation with the understanding that her probation would be revoked and that shewould be resentenced to concurrent nine-month terms of incarceration. Resentencing wastwice adjourned at defendant's request, each time with a warning from County Court thatit would not be bound by the agreed-upon sentence if defendant failed to comply with theterms of her release. In August 2011, prior to the adjourned resentencing date, a uniformcourt report was submitted to County Court alleging that defendant violated theconditions of her release by, among other things, failing to report to her probationofficer, and a bench warrant was issued for her arrest. Defendant thereafter failed toappear at the October 18, 2011 resentencing date and was not returned on the warrantuntil April 14, 2014, following her arrest on an unrelated matter. On April 29, 2014,County Court revoked defendant's probation and resentenced her to two consecutiveterms of 365 days in jail.
Defendant's sole contention on appeal is that the delay in resentencing was sounreasonable as to divest County Court of jurisdiction over her (see CPL 380.30[1]). However, [*2]defendant did not move to dismiss thedeclaration of delinquency on that ground, object to the delay or otherwise call intoquestion County Court's jurisdiction to resentence her. Accordingly, she failed topreserve the issue for our review (see People v Brooks, 118 AD3d 1123, 1124 [2014], lvdenied 24 NY3d 959 [2014]; People v Dissottle, 68 AD3d 1542, 1543 [2009], lvdenied 14 NY3d 799 [2010]; People v Cecere, 39 AD3d 557, 558 [2007], lvdenied 9 NY3d 873 [2007]; People v Young, 283 AD2d 597, 597 [2001],lv denied 96 NY2d 909 [2001]). In any event, "[o]nly delays that are inexcusableand unduly long violate the statutory directive" (People v Tredeau, 117 AD3d 1344, 1345 [2014]; seePeople ex rel. Harty v Fay, 10 NY2d 374, 379 [1961]; People v Arroyo, 22 AD3d881, 882 [2005], lv denied 6 NY3d 773 [2006]). Here, the delay wasattributable to defendant's multiple adjournment requests, as well as her unlawful failureto appear on the adjourned resentencing date, and "the People do not have a duty to makeefforts to apprehend an absconding defendant" absent evidence that they were actuallyaware of her whereabouts (People v Carter, 91 AD3d 967, 967 [2012], lvdenied 18 NY3d 992 [2012]; see People v Reyes, 214 AD2d 233, 236[1995], lv denied 87 NY2d 850 [1995]; People v Headley, 134 AD2d519, 519 [1987], lv granted 72 NY2d 861 [1988], appeal dismissed 72NY2d 931 [1988]). Thus, were we to consider the claim, we would find no violation ofCPL 380.30.
McCarthy, Garry and Rose, JJ., concur. Ordered that the judgment is affirmed.