People v. Harper

Citation520 N.Y.S.2d 892,137 Misc.2d 357
Decision Date25 August 1987
Docket NumberAP-7
PartiesThe PEOPLE of the State of New York, Plaintiff, v. Linwood HARPER, Defendant
CourtNew York City Court

Robert M. Morgenthau, Dist. Atty., New York County by Lewis Chimes, Asst. Dist. Atty., for the People.

Caesar Cirigliano by William Perniciaro, Legal Aid Soc., New York City, for defendant.


This motion to dismiss asserts that a twelve year delay in imposing sentence has deprived the Court of jurisdiction. Its resolution rests on constitutional and jurisdictional questions of first impression.


On April 16, 1974 defendant, then nineteen years old, was sentenced to probation on his guilty plea to Petit Larceny. P.L. Section 155.25. On May 13, 1975 he pled guilty to a violation of probation based on his failure to report. On June 12, 1975, the tentative sentencing date, and on three subsequent occasions, the defendant appeared but his attorney did not. 1 On September 17, 1975, defendant failed to appear and a bench warrant was issued. Defendant was arrested, and brought before the Criminal Court, on three subsequent occasions: in 1977, 1981 and 1984. However, he was not returned on the outstanding warrant until November 24, 1986. Although repeatedly notified to appear, the Probation Department has not appeared. Defendant has been at liberty awaiting decision.


The Criminal Procedure Law requires that "[s]entence must be pronounced without unreasonable delay." CPL Sec. 380.30 subd. 1. Modelled on federal law (cf Fed.Rule Crim.Pro. 32), the statute reaffirms long-standing New York policy (see People ex rel. Harty v. Fay, 10 N.Y.2d 374, 223 N.Y.S.2d 468, 179 N.E.2d 483), while substituting a flexible discretionary standard for the prior rigid statutory mandate. See Bellacosa, Practice Commentary to McKinney's CPL Sec. 380.30; cf former Code Crim.Pro. secs. 471, 472, 717. What constitutes unreasonable delay is not defined; neither is any consequence or remedy specified, jurisdictional or otherwise. Indeed The statute's negative wording makes clear that sentence can be postponed under reasonable circumstances. It necessarily implies both broad judicial discretion and a case-by-case determination. Nevertheless, certain generalizations can be made. A deliberate refusal to set a date for sentencing or a permanent deferral of sentence, is per se unreasonable and improper. People ex rel. Hogan v. Bohan, 305 N.Y. 110, 111 N.E.2d 233. However, a "deferred sentence"--a postponement of the imposition of sentence for a reasonable purpose, for appropriate, finite periods of time, is permissible; indeed, it has been held to be an inherent judicial power which cannot be legislatively abrogated. People ex rel. Forsyth v. Court of Sessions of Monroe County, 141 N.Y. 288, 36 N.E. 386 (1984); See generally, M. Evans and M.D. Stallman, Deferred Sentence: Common Law Alternative to Judge's Dilemma, New York Law Journal, November 22, 1982, p. 1, col. 2; November 23, 1982, p. 25, col. 1; November 24, 1982, p. 6, col. 1; November 26, 1982, p. 3, col. 1; November 29, 1982, p. 4, col. 1; November 30, 1982, p. 4, col. 1.

the statute does not use the word "jurisdiction."

In contrast, "delayed sentencing" refers to passive inaction, an inadvertent or unexplained failure to impose sentence. See Harty, supra and cases cited therein; People v. Green, 40 Misc.2d 772, 244 N.Y.S.2d 292. See gen. Note, 98 A.L.R.3d 605. Whether such a delay is reasonable or unreasonable, requires both qualitative and quantitative analysis. The length of the delay alone is not dispositive: a period of time reasonable under some circumstances may be unreasonable under others. As a general proposition, the greater the length of the delay, the greater must be the objective, cumulative showing to justify it; the greater the departure from usual procedure, the greater the inference of unreasonableness which must be overcome. See People v. Drake, 61 N.Y.2d 359, 365-67, 474 N.Y.S.2d 276, 462 N.E.2d 376. See also People v. Warrelman, 42 Misc.2d 783, 786, 249 N.Y.S.2d 220. Thus, where the delay is both protracted and unexplained, the courts will generally find it unreasonable. See Drake, supra; Harty, supra; People v. Bliss, 17 A.D.2d 767, 232 N.Y.S.2d 273; People v. Newcombe, 18 A.D.2d 1087, 239 N.Y.S.2d 378. Where the delay is explained and is appropriate to the circumstances the courts generally deem it reasonable. See, e.g., Matter of Root v. Kapelman, 67 A.D.2d 131, 414 N.Y.S.2d 707 (absconding defendant); People v. Randolph. 85 Misc.2d 1022, 381 N.Y.S.2d 192 (rearrest in another state); see also People v. Goldberg, 39 A.D.2d 948, 332 N.Y.S.2d 903 (failure of probation department to complete investigation; a questionable precedent). If the delay is attributable to wrongdoing or negligence by the judiciary, prosecution or other law enforcement agency, it is generally deemed unreasonable per se. See People v. Drake, supra at 61 N.Y.2d 359, 366, 474 N.Y.S.2d 276, 462 N.E.2d 376; People v. Monaghan, 34 A.D.2d 815, 311 N.Y.S.2d 722. If, however, the delay is found to have been caused by the defendant, it should not be attributed to the State. See People v. Valdes, 121 Misc.2d 201, 467 N.Y.S.2d 550 (defendant absented himself from court at every opportunity); Matter of Weinstein v. Haft, 60 N.Y.2d 625, 467 N.Y.S.2d 350, 454 N.E.2d 933 (defendant sought repeated postponements).


"Loss of jurisdiction" has become a term of art, a veritable "buzz-word" used by the New York courts to trigger dismissal upon a finding of unreasonable delay in imposing sentence. Yet, such a result is not explicitly mandated by the statute. See CPL 380.30 subd. 1. A product of case law, the term "loss of jurisdiction" has never been legislatively or judicially defined. Neither has any case fully explained why, or under what circumstances, jurisdiction is "lost".

The term is derived from old common law practice. Originally, at common law, a court having criminal jurisdiction was obliged to impose sentence during the term of court in which the defendant was convicted.

While the power to "respite" or "reprieve", i.e., to defer imposition of sentence, was recognized in Elizabethan times, if a court did not affirmatively act during its term to either impose or defer sentence, jurisdiction was "lost", i.e., its power to act on the pending case ended with the court's term. 2 Dyer 234b [1564]. See Evans and Stallman, supra at New York Law Journal, 11/23/82, p. 26, col. 1. This drastic result was altered by statute, which has repeatedly extended the power of the trial court to impose sentence beyond the rigid limitation of its own term. Former Code Crim.Pro. Section 471, 472, 482; CPL 380.30.

In New York case law, the term first appeared in the delayed sentencing context, as a passing reference, in 1887. People v. Everhardt, 104 N.Y. 591, 598, 11 N.E. 62. Not until 1961, however, did the New York Court of Appeals hold that a "long and unnecessary" failure to sentence was not only error, but resulted in a loss of jurisdiction. People ex rel Harty v. Fay, 10 N.Y.2d 374, 379, 223 N.Y.S.2d 468, 179 N.E.2d 483. In Harty, the defendant successfully challenged the imposition of a prison sentence six years after plea. During the interim, the defendant was imprisoned for five years on an unrelated charge; only after parole, re-arrest, and re-imprisonment on a parole violation, was the subject sentence imposed on the six-year old guilty plea. The Court of Appeals concluded that such delay violates both the defendant's interest and the public interest in prompt, final disposition of criminal cases.

Existing law recognized that a trial court could be compelled, by mandamus, to impose sentence when it had been deliberately and indefinitely delayed. Matter of Hogan v. Bohan, 305 N.Y. 110, 111 N.E.2d 233. Rather than extending Hogan to the passive inaction of Harty, the court adopted a punitive and prophylatic rule mandating dismissal, applicable to both purposeful and inadvertent delays. Harty at 10 N.Y.2d 374, 379, 223 N.Y.S.2d 468, 179 N.E.2d 483. It specifically limited its rule to "extremely long and unreasonable delays only". Id. In 1984, the Court of Appeals re-affirmed its "loss of jurisdiction" rule but expanded its application to all delays deemed qualitatively unreasonable after consideration of the totality of the circumstances. People v. Drake, 61 N.Y.2d 359, 474 N.Y.S.2d 276, 462 N.E.2d 376.

Some cases have apparently used the term "loss of jurisdiction" metaphorically, meaning that dismissal is the only remedy appropriate to punish official wrongdoing and prevent its re-occurrence. Thus, while the court retains the power to adjudicate the case before it, justice requires that it not be exercised. See, e.g., Harty, supra, 10 N.Y.2d at 379, 223 N.Y.S.2d 468, 179 N.E.2d 483; Drake, supra, 61 N.Y.2d at 366-67, 474 N.Y.S.2d 276, 462 N.E.2d 376; People v. Warrelman, 42 Misc.2d 783, 249 N.Y.S.2d 220.

Other cases appear to employ the term literally. For example, past tense implies that the court actually ceased to have the power to impose sentence. E.g., People v. Bliss, 17 A.D.2d 767, 232 N.Y.S.2d 273; People v. Newcombe, 18 A.D.2d 1087, 239 N.Y.S.2d 378; People v. Monaghan, 34 A.D.2d 815, 817, 311 N.Y.S.2d 722. Some cases simply cite Harty or CPL Section 380.30, thus merely begging the question. E.g., People ex rel Accurso v. McMann, 23 A.D.2d 936, 259 N.Y.S.2d 916. Other cases use contradictory wording which impedes meaningful conceptual analysis. E.g., People v. Green, 40 Misc.2d 772, 775, 244 N.Y.S.2d 292 (dismissing "in the interest of justice ... for lack of jurisdiction").

An examination of basic jurisdictional principles compels the conclusion that the term "loss of jurisdiction" should be understood literally. At issue here is whether this Court still has in personam jurisdiction in this particular case, i.e., the power to...

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  • Jolly v. State, CR 03-1217.
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    ......Avery, 95 N.C.App. 572, 383 S.E.2d 224, 225 (1989); State v. Todisco, 129 N.M. 310, 6 P.3d 1032 (App.2000); People v. Harper, 137 Misc.2d 357, 520 N.Y.S.2d 892 (1987); Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597, 599 (1980); State v. Banks, 720 P.2d ......
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    ......Harty v. Fay, supra ). Moreover, his three arrests in New York in 1984 were insufficient to attribute the entire delay to the People insofar as the defendant continuously provided false identification (see, People v. Valdes, 121 Misc.2d 201, 467 N.Y.S.2d 550; cf., People v. Harper, 137 Misc.2d 357, 520 N.Y.S.2d 892). In any event, the defendant absconded from the state prior to his sentencing on those ......
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