People v. Rodriguez

261 A.D.2d 331, 690 N.Y.S.2d 426, 1999 N.Y. App. Div. LEXIS 5826

Opinion

—Judgment, Supreme Court, New York County (George Roberts, J., at plea; Brenda Soloff, J., at sentence), rendered May 13, 1997, convicting defendant of attempted criminal sale of a controlled substance in the third degree, and sentencing him to a term of 3 to 9 years, unanimously affirmed.

Defendant’s claim that the court improperly denied his request for an adjournment of sentencing for the purpose of making a motion, pursuant to CPL 380.30 (1), challenging the delay between his plea and sentencing, has not been preserved for appellate review, because at the time of sentencing defendant did not articulate his present claim that the delay resulted from his Federal incarceration within the People’s actual or constructive knowledge. Moreover, defendant made no subsequent effort to establish this claim by way of a post-conviction motion pursuant to CPL article 440. We decline to review this claim in the interest of justice. Were we to review it, we would find that the court properly exercised its discretion in denying the requested adjournment, because there was no indication at sentencing that the People knew or should have known of defendant’s Federal incarceration or that a motion challenging sentencing delay would otherwise have any merit.

We perceive no abuse of sentencing discretion. Concur— Nardelli, J. P., Tom, Mazzarelli, Lerner and Buckley, JJ.