People v. Douglas

Nov 18, 1999
Versions:94 N.Y.2d 807
723 N.E.2d 54
701 N.Y.S.2d 305
1999 N.Y. LEXIS 3728

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In September 1987, defendant was convicted in Kings County on a charge of criminal possession of a weapon in the third degree. Supreme Court sentenced him to five years probation and community service. Three and a half years into his probationary term, defendant violated his probation, absconded to Nassau County and was arrested and charged with two separate crimes. Defendant pleaded guilty to robbery in the first degree and in 1992 was sentenced as a second felony offender to 9 to 18 years in prison. In November 1991, Supreme Court, Kings County, issued a declaration of delinquency, and subsequently issued a warrant. After a violation of probation hearing in 1996, the court revoked the 1987 sentence of probation and imposed a sentence of 2V3 to 7 years to run consecutively to the 9-to-18-year Nassau County sentence. The Appellate Division affirmed.

We agree with the Appellate Division that the filing of a declaration of delinquency in 1991 tolled the expiration of the probationary sentence (Penal Law § 65.15 [2]). At the violation of probation hearing, defendant did not raise his current claim that the hearing was untimely under CPL 410.30. Thus, defendant’s argument is unpreserved for appellate review.

Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur.

Order affirmed in a memorandum.