SHORT FORM ORDER

SUPREME COURT OF THE STATE OF NEW YORK
CRIMINAL TERM - PART "A" QUEENS COUNTY
88-ll Sutphin Boulevard, Jamaica, New York ll435

P R E S E N T:

                              HON. PHYLLIS ORLIKOFF FLUG
                                                        JUSTICE

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THE PEOPLE OF THE STATE OF NEW YORK:                INDICT. NO. 5l46/93
                                                                              :
                  - against -                                              :                MOTION TO DISMISS
                                                                                                        AND RECUSE
                                                                              :
STANLEY PIERRE PAUL                                    :
                                                                              :
                                                      Defendant(s)      :                 SUBMITTED
-----------------------------------                           :

The following papers numbered                                                 HEARING
1 to submitted in this motion  
                                                                                       MARVYN M. KORNBERG, ESQ.  
                                                                                                  FOR THE MOTION  
                                                     
                                                                                           ________________________
                                                                                                          OPPOSED

                                                                                                                        Papers Numbered
Notice of Motion and Affidavits/
Affirmations Annexed ____________________________                                          ________

Answering and Reply Affidavits/
Affirmations ____________________________________                                          ________

Exhibit _________________________________________                                         ________

Minutes _________________________________________                                        ________

On February 28, l994 the defendant pled guilty to Assault in the Second degree under PL l20.05.

On the same date he was granted Youthful Offender treatment and sentenced to five (5) years' probation.

On July 3, l998 the defendant was re-arrested and charged with Criminal Possession of a Controlled Substance in the Second and Third Degrees and Criminal Possession of a Weapon in the Third Degree.

He was subsequently indicted and charged with these crimes under Indictment No. N-ll525/98.

On July 2l, l999 the defendant pled guilty to a Violation of Probation admitting to the sole specification, which incorporated the charges in the indictment.

The sentence was adjourned to September l, l999 for sentence. On the adjourned date and on four occasions thereafter (l0/27/99; l2/l5/99; 2/9/00; and 2/23/00) the sentence was adjourned. On February 9, 2000 the defendant's attorney was on trial in Orange County.

On June 22, l999 the new matter was scheduled for trial in TAP VI. On that date and on five (5) subsequent dates the trial was adjourned at the request of the defendant (6/22/99; 7/27/99; ll/30/99; l/24/00; 2/22/00). On l0/l8/99 the trial was adjourned on consent.

On February 22, 2000, after he adjourned the new matter and one day before his scheduled appearance before this Court on the VOP, the defendant purportedly served the within motion on the Probation Department (the Court uses the term"purportedly" since the acknowledgment of service consists merely of the initials "PG 2/22/00" without further identification. No service was effected on the District Attorney's office. Finally, the motion was never filed in the Supreme Court Clerk's office (where it would be logged in, assigned a motion number and a motion date).

On February 23, 2000 the motion was submitted.

It is apparent to this Court that the defendant, through his attorney, has engaged in a game of wait-and-see with this Court. He has manipulated the system in an attempt to avoid the possible imposition by this Court of a consecutive sentence. Such a sentence is within the Court's discretion. It may direct that the sentence run consecutively to any sentence imposed upon the defendant on the new charges (see, People v Wilmot, 208 AD2d 968 [2nd Dept., l994]; People v Klein, l26 AD2d 670 [2nd Dept., l987]). It is not the defendant's right to run the Supreme Court calendar.

There is no merit to the defendant's claim that the Court has lost jurisdiction of the VOP through its inaction. The Court is merely awaiting a final disposition of the criminal trial before exercising its discretion (see, People v Brewer, 237 AD2d 453 [2nd Dept., l997]; People v Harris, l45 AD2d 435 [2nd Dept., l988]).

Finally, the defendant alleges that the Court has thwarted the wishes of the Department of Probation and District Attorney's Office. He claims that both of these agencies agree with a "so-called offer of 2 - 6," to run concurrently with any sentence imposed by this Court on the violation of probation. Yet, no one from either of those agencies has ever communicated such an offer and desire to this Court. In fact, at the February 23, 2000 appearance, a representative of the Probation Department referred the Court to People v Brewer.

In view of the foregoing, the motion to dismiss the instant proceeding for a violation of probation and that this Court recuse itself are denied.

 Dated: Jamaica, New York                                                    ______________s/_____________
February 29, 2000                                                                 PHYLLIS ORLIKOFF FLUG, J.S.C.