Opinion
2020-309 K CR
04-01-2022
The People of the State of New York, Respondent, v. Robert Dorsey, Appellant.
Appellate Advocates (Benjamin Welikson of counsel), for appellant. Kings County District Attorney (Leonard Joblove, Ruth E. Ross and Melissa Wachs of counsel), for respondent.
Unpublished Opinion
Appellate Advocates (Benjamin Welikson of counsel), for appellant.
Kings County District Attorney (Leonard Joblove, Ruth E. Ross and Melissa Wachs of counsel), for respondent.
PRESENT:: THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, CHEREE A. BUGGS, JJ
Appeal from an amended judgment of the Criminal Court of the City of New York, Kings County (Joseph McCormack, J.), rendered January 13, 2020. The amended judgment, after a hearing, revoked a sentence of a conditional discharge previously imposed by that court, upon a finding that defendant had violated a condition thereof, and resentenced defendant to four months' imprisonment upon his previous conviction, upon a guilty plea, of reckless endangerment in the second degree and aggravated unlicensed operation of a motor vehicle in the third degree.
ORDERED that the amended judgment of conviction is affirmed.
Defendant was charged in an accusatory instrument with, among other things, reckless endangerment in the second degree (Penal Law § 120.20) and aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1] [a]). On February 27, 2019, upon granting a motion by the People, the court consolidated this matter with two other matters involving similar charges against defendant. As part of a global agreement covering all three consolidated matters, on May 8, 2019, defendant pleaded guilty to reckless endangerment in the second degree and aggravated unlicensed operation of a motor vehicle in the third degree in exchange for a promised sentence of a conditional discharge, a condition of which was the completion of treatment at Treatment Alternatives for Safer Communities (TASC), with a one-year jail alternative if defendant did not complete the TASC program. The court also informed defendant that, under the conditional discharge, he could not get rearrested. At that same proceeding, the court sentenced defendant as promised.
At a subsequent appearance, the prosecutor informed the court that defendant had tested positive for marihuana five times, had been arrested again and charged with reckless driving and aggravated unlicensed operation of a motor vehicle in the second and third degrees, and that, consequently, defendant had violated a condition of his conditional discharge. The court indicated that it would conduct a violation of conditional discharge hearing. Defense counsel requested an adjournment, which request was granted. At the next court appearance, the prosecutor indicated that the People's witnesses were not available for the hearing and, despite defense counsel's insistence on conducting the hearing, the court stated that it was not ready and adjourned the hearing. At the following appearance, on December 3, 2019, the court stated that the first issue at the hearing would be defendant's new arrest. Defense counsel informed the court that he was not ready for the hearing and requested a further adjournment for various reasons, including that he had not been provided with a declaration of delinquency, as required by CPL 410.30. The court responded that it had orally notified the parties of the violations at prior appearances and, since defense counsel also represented defendant on the new arrest, he had all the details pertaining to that matter. Nonetheless, the court stated it would "second-call" the case so as to allow the People time to prepare a written declaration of delinquency. In the declaration of delinquency, the People alleged that defendant had violated his conditional discharge by testing positive for marihuana and by committing additional criminal offenses. Upon a recall of the case, defense counsel again requested an adjournment of the hearing so as to prepare a defense. The court responded that it had already provided defendant with an adjournment and denied this additional request; however, the court adjourned the matter to the next day so as to allow the People's witnesses to appear and testify.
On December 4, 2019, the hearing was conducted. Defense counsel refused to cross-examine the People's witnesses and argued that it was fundamentally unfair for the court to have granted the People multiple adjournments but deny his requests. After the People rested, the court adjourned the hearing to December 16, 2019 so as to allow defense counsel time to present evidence and further arguments. On that date, after defendant rested his case without presenting any evidence, the court ruled that the People had failed to prove the first alleged violation, i.e., that defendant had tested positive for marihuana, but that they did prove the second violation, i.e., that defendant had been arrested again and charged with reckless driving and aggravated unlicensed operation of a motor vehicle in the second and third degrees. On January 13, 2020, the court revoked defendant's conditional discharge and resentenced him to four months' imprisonment.
It is well settled that the decision whether to grant or to refuse an adjournment for any purpose is a matter of discretion for the trial court (see People v Lashway, 25 N.Y.3d 478, 484 [2015]; People v Recor, 87 N.Y.2d 933 [1996]; People v Spears, 64 N.Y.2d 698, 699 [1984]; People v Singleton, 41 N.Y.2d 402, 405 [1977]). However, an abuse or improvident exercise of discretion may occur where the refusal to grant an adjournment results in the deprivation of a defendant's fundamental rights (see Spears, 64 N.Y.2d at 700; People v Foy, 32 N.Y.2d 473, 476-4 78 [1973]). Pursuant to CPL 410.70 (1), a court may not revoke a sentence of conditional discharge unless "(a) the court has found that the defendant has violated a condition of the sentence and (b) the defendant has had an opportunity to be heard." The defendant is entitled to a hearing after the court has filed a declaration of delinquency (see CPL 410.30, 410.70 [2]). Additionally, pursuant to CPL 410.70 (2), prior to the commencement of a violation hearing, "upon request, the court must grant a reasonable adjournment to the defendant to enable him [or her] to prepare for the hearing." CPL 410.70 (3) further provides that a hearing on the violation must be a summary one by the court, which may receive any relevant evidence not legally privileged; that the defendant may cross-examine witnesses and may present evidence on his or her own behalf; and that a finding that the defendant had violated a condition of his or her sentence must be based upon a preponderance of the evidence. Thus, due process requirements are met so long as the defendant is given formal notice of the charges, an opportunity to be heard, and an initial adjournment of the hearing upon the defendant's request (see CPL 410.30, 410.70 [1], [3]; Black v Romano, 471 U.S. 606, 610-612 [1985]; Gagnon v Scarpelli, 411 U.S. 778 [1973]; People v Oskroba, 305 NY 113 [1953]; People v Ebert, 18 A.D.3d 963 [2005]).
Here, under the particular circumstances presented, we conclude that the court satisfied the requirements of CPL 410.30 and 410.70 (see Black v Romano, 471 U.S. at 611-612; Oskroba, 305 NY at 117; Ebert, 18 A.D.3d 963). To the extent the court failed to grant all of defense counsel's requests for adjournments, we find that the court was within its discretion to deny those requests (see Recor, 87 N.Y.2d at 934; People v Sacco, 44 A.D.3d 1076 [2007]; Ebert, 18 A.D.3d 963; People v Rosado, 74 A.D.2d 883 [1980]).
Accordingly, the amended judgment of conviction is affirmed.
ALIOTTA, P.J., WESTON and BUGGS, JJ., concur. 1