People v. Kerrick

• Decision Date: 11 February 2016
• Parties: The PEOPLE of the State of New York, Respondent, v. Mickey Q. KERRICK, Appellant.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 1099
25 N.Y.S.3d 392

The PEOPLE of the State of New York, Respondent,
v.
Mickey Q. KERRICK, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Feb. 11, 2016.

25 N.Y.S.3d 393

Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.

Mary E. Rain, District Attorney, Canton (Ramy Louis of counsel), for respondent.

Before: PETERS, P.J., GARRY, EGAN JR., ROSE and CLARK, JJ.

EGAN JR., J.

136 A.D.3d 1099

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered October 15, 2012, convicting defendant upon his plea of guilty of the crimes of burglary in the second degree and criminal possession of a weapon in the third degree.

In December 2010, defendant pleaded guilty to burglary in the second degree and criminal possession of a weapon in the third degree in full satisfaction of a 12–count indictment and a superior court information. Pursuant to the plea agreement, defendant agreed to, and did, sign in open court a separate waiver of appeal for each of the crimes to which he pleaded

136 A.D.3d 1100

guilty, admit at sentencing that he was a second felony offender and cooperate with the People in the prosecution of two codefendants. Following defendant's plea, County Court remanded him to jail and scheduled sentencing for March 2011 to allow the People to bring the codefendants' cases to trial.

In April 2011, defendant sought, by order to show cause, a release from custody pending the remaining prosecution of the second of defendant's two codefendants. At that time, County Court was informed that defendant already had testified against the first of his two codefendants, that the trial of his second codefendant had not yet been scheduled and that defendant wanted to be sentenced as quickly as possible. County Court denied the request, noting defendant's criminal history

25 N.Y.S.3d 394

and that he would receive credit for time served. By letter dated October 4, 2012, defendant informed County Court that he had yet to be sentenced and requested that the court schedule a sentencing date and impose the negotiated sentence. On October 15, 2012, County Court sentenced defendant, as a second felony offender, to concurrent prison terms of seven years for the burglary in the second degree conviction and 2 ½ to 5 years for the criminal possession of a weapon in the third degree conviction to be followed by five years of postrelease supervision. Defendant now appeals.

We affirm. Initially, defendant contends that the delay in sentencing was so unreasonable as to divest County Court of jurisdiction over him (see CPL 380.30[1] ; People v. Gilbert, 133 A.D.3d 928, 929, 18 N.Y.S.3d 795 [2015] ). Although defendant informed County Court of the delay in sentencing, defendant did not move to dismiss the indictment or superior court information upon that ground or otherwise call into question County Court's jurisdiction to sentence him. Accordingly, although this claim is not barred by his appeal waiver (see People v. Campbell, 97 N.Y.2d 532, 534–535, 743 N.Y.S.2d 396, 769 N.E.2d 1288 [2002] ; People v. Brooks, 118 A.D.3d 1123, 1124, 987 N.Y.S.2d 249 [2014], lv. denied 24 N.Y.3d 959, 996 N.Y.S.2d 218, 20 N.E.3d 998 [2014] ), defendant failed to preserve the issue for our review (see People v. Gilbert, 133 A.D.3d at 929, 18 N.Y.S.3d 795 ; People v. Brooks, 118 A.D.3d at 1124, 987 N.Y.S.2d 249 ; People v. Dissottle, 68 A.D.3d 1542, 1543, 893 N.Y.S.2d 649 [2009], lv. denied 14 N.Y.3d 799, 899 N.Y.S.2d 133, 925 N.E.2d 937 [2010] ). In any event, while "delays that are inexcusable and unduly long violate the statutory directive" (People v. Tredeau, 117 A.D.3d 1344, 1345, 987 N.Y.S.2d 119 [2014] ; see People ex rel. Harty v. Fay, 10 N.Y.2d 374, 379, 223 N.Y.S.2d 468, 179 N.E.2d 483 [1961] ; People v. Arroyo, 22 A.D.3d 881, 882, 802 N.Y.S.2d 552 [2005], lv. denied 6 N.Y.3d 773, 811 N.Y.S.2d 340, 844 N.E.2d 795 [2006] ), " ‘a delay will be excused where it is...