Defendant was originally charged with the B felony of Criminal Possession of a Controlled Substance in the Third Degree (PL § 220.16[12]) and the A misdemeanor of Criminally Using Drug Paraphernalia in the Second Degree (PL §220.50). On December 31, 1990, he pled guilty, under a Superior Court Information, to the reduced charge of Attempted Criminal Possession of a Controlled Substance in the Third Degree (110/220.16[1]), a C felony, with the promise that he would receive a sentence of five years of probation and youthful offender status. The case was adjourned to February 13, 1991 for sentencing. Defendant failed to appear on that date and a bench warrant was ordered. According to an updated rap sheet, which was included in defendant's motion papers, defendant had multiple contacts with the New Jersey criminal justice system between November 1991 and October 2003, some of which resulted in jail time ranging from 10 days to approximately 6 months. The rap sheet also indicates that defendant used 9 different names, 6 different dates of birth and 4 different social security numbers. Defendant also has a bench warrant history in New Jersey.

In January 2012, defendant, using the name "Derrick Hooper", wrote a letter seeking "expungement" of his New York County case because he was "having problems with landing good jobs because of [my] past". According to defendant's motion papers, "He discovered that he had a New York warrant because a background check was done when he was applying for a job at Newark Airport." Defendant's letter was received by the Supreme Court Clerk's Office on either January 10 or January 13, 2012 and was forwarded to the New York County District [*2]Attorney's Office. Concerning defendant's 1991 warrant, his rap sheet has the following entry: "Date of Entry Onto State Files: January 12, 2012". There is also in the Court file a "timeline" attached to the defendant's and Court Clerk's correspondence containing the following entry: "1/11/2012S Ct clerks indicate that they will update computer records to reflect warrant status". There is no attribution as to the source of this timeline.

On November 15, 2012, defendant was arrested and incarcerated in New Jersey pending extradition to New York. Defendant waived extradition on December 19, 2012 and was returned on the New York warrant on January 10, 2013.

Defendant now moves for a dismissal of his case under CPL § 380.30, arguing that the Court has lost jurisdiction as a result of the approximately 22 year delay in sentencing him.

CPL § 380.30 (1) provides that a sentence must be pronounced without unreasonable delay. Where there has been a long and unexplained sentencing delay caused by judicial or prosecutorial negligence or mistake, the indictment must be dismissed. People v Drake, 61 NY2d359 (1984). The same result does not follow, however, where the delay is the product of defendant's own conduct. People v Campbell, 97 NY2d 532 (2002).

Defendant bases his argument on the asserted claim that the bench warrant in this case had not been entered into the State records until January 2012. He argues that the People have a duty to exercise due diligence to effect the return of a defendant when they knew or should have known the defendant was incarcerated. Had the warrant been timely entered in 1991, the defendant argues, he would have been returned on the warrant due to his various contacts with the New Jersey criminal justice system between 1991 and 2003.

While the People do have a duty to exercise due diligence in effecting the return of an incarcerated defendant, this duty is premised, in part, upon the fact that an incarcerated defendant is incapable of appearing in court by his own efforts. Where an absconded defendant is not incarcerated, due diligence is not required of the People. People v Reyes, 214 AD2d 233 (1st Dept, 1995). Although defendant was incarcerated in New Jersey several times between 1991 and 2003, he was at liberty for the vast majority of that period. It also appears that defendant was at liberty for the entire period from 2003 until 2010. Defendant could have ended the delay in sentencing simply by surrendering himself. Instead, defendant blatantly disregarded his legal duty to present himself for sentencing. And where, as here, the delay was almost entirely caused by defendant's continuing unlawful failure to appear for sentencing, the Court is not deprived of jurisdiction to sentence the defendant. People v Saunders, 93 AD3d 487 (1st Dept, 2012). The fact that the warrant may or may not have been timely entered is of no moment under the facts of this case.

Defendant's motion to dismiss pursuant to CPL § 380.30 is hereby denied.

This constitutes the decision and order of the Court.

Dated:___________________________

New York, New YorkRichard M. Weinberg

JSC