Weinstein v. Haft

• Citation: 60 N.Y.2d 625,454 N.E.2d 933,467 N.Y.S.2d 350
• Parties: , 454 N.E.2d 933 In the Matter of Tahera K. WEINSTEIN, Appellant, v. Robert M. HAFT, as Justice of the Supreme Court, Respondent.
• Decision Date: 01 September 1983
• Court: New York Court of Appeals Court of Appeals

Page 350

467 N.Y.S.2d 350

60 N.Y.2d 625, 454 N.E.2d 933

In the Matter of Tahera K. WEINSTEIN, Appellant, v. Robert M. HAFT, as Justice of the Supreme Court, Respondent.

Court of Appeals of New York.

Sept. 1, 1983.

[454 N.E.2d 934] Lawrence A. Kravitz, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. (Mark Dwyer and Michael H. Warren, Asst. Dist. Attys., of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The judgment of the Appellate Division, 93 A.D.2d 786, 462 N.Y.S.2d 3, should be affirmed, with costs.

Insofar as the petition seeks relief by way of prohibition, it is predicated on the concept that, by allowing over three years to elapse from petitioner's guilty plea without sentencing her and then adjourning the motion for a further year, respondent lost jurisdiction of the matter. The first three years were at petitioner's behest, however, and under the circumstances of this case the additional time does not constitute such an "extremely long and unreasonable" delay (People ex rel. Harty v. Fay, 10 N.Y.2d 374, 379, 223 N.Y.S.2d 468, 179 N.E.2d 483) as to divest the court of its power to sentence.

Denial of mandamus relief was also proper. Mandamus will lie to compel the determination of a motion (Matter of Briggs v. Lauman, 21 A.D.2d 734, 250 N.Y.S.2d 126, mot. for lv. to app. den. 15 N.Y.2d 481, 253 N.Y.S.2d 1029, 202 N.E.2d 160; see Matter of Legal Aid Soc. v. Scheinman, 73 A.D.2d 411, 413, 426 N.Y.S.2d 840, affd. 53 N.Y.2d 12, 439 N.Y.S.2d 882, 422 N.E.2d 542; Matter of National Auto Weld v. Clynes, 89 AD2d 689, 454 N.Y.S.2d 33) as well as to compel a trial court to proceed with sentencing (CPL 380.30, subd. 1; Matter of Hogan v. Bohan, 305 N.Y. 110, 111 N.E.2d 233; see People ex rel. Prosser v. Martin, 306 N.Y. 710, 117 N.E.2d 902). Here, however, sentencing has been delayed at petitioner's request, and in view of the medical testimony that further treatment might improve petitioner's physical condition, we cannot say in this instance that it was an abuse of discretion for the Trial Judge to postpone disposition of the motion to dismiss pending receipt of a further medical report as to the success of such treatment.

COOKE, C.J., and JASEN, JONES, WACHTLER, MEYER and SIMONS, JJ., concur.

On review of submissions pursuant to rule 500.2(b) of the Rules of the Court of Appeals (22 NYCRR 500.2[g] ), judgment affirmed, with costs, in a memorandum.