CARLSON, SHANE, PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1046
KA 16-00297
PRESENT: CARNI, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
SHANE K. CARLSON, DEFENDANT-APPELLANT.
BATTISTI & GARZO, P.C., BINGHAMTON (MICHAEL A. GARZO, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.
Appeal from a judgment of the Steuben County Court (Peter C.
Bradstreet, J.), rendered October 21, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the third degree (two counts), criminally
using drug paraphernalia in the second degree, assault in the second
degree, tampering with physical evidence, resisting arrest and driving
while ability impaired by the combined influence of drugs or of
alcohol and any drug or drugs.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of, inter alia, two counts of criminal
possession of a controlled substance in the third degree (Penal Law
§ 220.16 [1], [12]). As part of the plea agreement, defendant was
placed on interim probation and, pursuant to CPL 390.30 (6) (a), his
sentencing was adjourned for one year. Defendant contends that County
Court should have dismissed the indictment because sentencing did not
occur until more than one year after he pleaded guilty. We reject
that contention.
In pertinent part, CPL 390.30 provides that, “[i]n any case where
the court determines that a defendant is eligible for a sentence of
probation, the court, after consultation with the prosecutor and upon
the consent of the defendant, may adjourn the sentencing to a
specified date and order that the defendant be placed on interim
probation supervision. In no event may the sentencing be adjourned
for a period exceeding one year from the date the conviction is
entered, except that upon good cause shown, the court may, upon the
defendant’s consent, extend the period for an additional one year
where the defendant has agreed to and is still participating in a
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KA 16-00297
substance abuse treatment program in connection with a . . . drug
court” (CPL 390.30 [6] [a] [emphasis added]).
Here, defendant entered the guilty plea on June 4, 2012, and a
sentencing hearing was scheduled for the morning of June 3, 2013. On
that date, however, the court rescheduled the sentencing to the
afternoon. Defense counsel informed the court that he was unavailable
that afternoon, and sentencing was adjourned, upon the request of
defense counsel, to June 17, 2013. Under the circumstances of this
case, we conclude that the court properly denied defendant’s
subsequent motion to dismiss the indictment based on the court’s
failure to sentence him within one year of the date of his guilty plea
inasmuch as the delay resulted from defense counsel’s request for an
adjournment.
Entered: December 23, 2016 Frances E. Cafarell
Clerk of the Court