23 A.D.3d 491
N.Y. App. Div.
2005

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v GABRIEL BORGWIN, Appellant.

Appellate Division of the Supreme Court of New York, Second Department

803 NYS2d 912

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ambrosio, J.), rendered October 23, 2003, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the delay in sentencing was not due to any prosecutorial neglect (see People v Drake, 61 NY2d 359 [1984]; People v McNeil, 237 AD2d 622 [1997]; People v Headley, 134 AD2d 519 [1987]; cf. People ex rel. Harty v Fay, 10 NY2d 374 [1961]; People v Reyes, 15 AD3d 868 [2005]). Therefore, the defendant was not entitled to dismissal of the indictment pursuant to CPL 380.30 (1).

Under the circumstances of this case, the defendant’s purported waiver of the right to appeal was not knowing and intelligent (see People v Brown, 13 AD3d 548 [2004]; People v Rose, 236 AD2d 637 [1997]; People v Rolon, 220 AD2d 543 [1995]). Accordingly, we have considered the defendant’s contention that the sentence imposed was excessive, and find it to be without merit (see People v Kazepis, 101 AD2d 816 [1984]).

Cozier, J.P., Krausman, Goldstein and Lunn, JJ., concur.