Weinstein v. Haft ( 1983 )

— Petition pursuant to CPLR article 78 in the nature of a writ of prohibition, seeking to prohibit respondent from executing or enforcing his order issued September 17, 1982 and in the nature of mandamus, seeking to compel respondent to render a decision on petitioner’s pending motion to withdraw her plea of guilty and to dismiss the indictment against her in the interests of justice and for other related relief, is denied and the petition dismissed, without costs. On July 9, 1979, petitioner pleaded guilty to falsifying business records in the first degree in satisfaction of all the charges in the indictment. Sentencing was scheduled for October 9,1979, but at that time she moved to withdraw her plea. Although the motion was subsequently denied, sentencing was postponed in order to permit petitioner to undergo medical treatment. On March 17,1980, the court received a medical report prepared for Federal authorities to enable them to determine whether petitioner’s health would be adversely affected should she appear in Federal court, where she was due to be sentenced as a parole violator. The report indicated that she was capable of attending a court session for the limited purpose of being sentenced. However, petitioner strongly resisted the Judge’s attempt to impose sentence contending that she was physically disabled, and the matter was repeatedly adjourned. On February 27, 1981, the court directed that a hearing be held concerning her medical condition. Petitioner thereafter moved to withdraw her plea of guilty and dismiss the indictment in the interests of justice, arguing that her health problems precluded incarceration. Over the course of more than a year, and continuing until July of 1982, the court heard testimony on the subject of petitioner’s state of health. Finally, on July 29, 1982, the Judge set September 17, 1982 as the date on which he would issue a decision with regard to petitioner’s case. On September 17, 1982, the court adjourned the matter until September 16, 1983. The Judge, apparently believing that he needed additional medical information to decide the motion, ordered the petitioner to submit a full medical report by June 17, 1983, and the People were given until August 1,1983 to respond or to retain their own physician to conduct a separate examination. Although petitioner requests that we grant her petition pursuant to CPLR article 78 and direct the court to render a decision on her pending motion and dismiss the indictment, there is no indication that she ever expressed to the Judge her dissatisfaction with his order of September 17, 1982 nor that she asked the court for an earlier ruling on her motion. She is certainly not pressing for an immediate sentence. In fact, she has done everything possible to delay, if not altogether prevent, sentencing. Under these circumstances, it would be inappropriate for this court to conclude that the Judge abused his discretion and to compel him to expedite proceedings which the petitioner has endeavored for years to prolong. Concur — Ross, J. P., Carro and Milonas, JJ.