People v. Jacks

235 A.D.2d 247, 652 N.Y.S.2d 275, 1997 N.Y. App. Div. LEXIS 241

Opinion

Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered July 29, 1993, resentencing defendant, after a hearing, to four consecutive terms of 2⅓ to 7 years, upon a finding that he violated the terms of his probation imposed by a judgment of the same court and Justice, rendered June 29, 1988, convicting him, upon his pleas of guilty, of four counts of attempted burglary in the second degree, unanimously reversed, on the law, and the violation of probation vacated.

Since the defendant was sentenced to five years probation in June 1988, the postponement of the hearing on the violation of probation, which was not commenced until July 14, 1993, deprived the court of jurisdiction under the circumstances (cf., People v Diaz, 101 AD2d 841). The trial court adjourned this matter numerous times without defendant’s request or consent, and in the absence of either the defendant (a paraplegic, who was in the custody of the New York City Department of Correction, and who had been brought to the courthouse, but not yet to the courtroom at the time of some of the adjournments) or his counsel, causing an unreasonable delay (see, CPL 410.30, 410.70 [1]). Concur—Rosenberger, J. P., Ellerin, Wallach, Tom and Mazzarelli, JJ.