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WITH APPEAL REJECTED, PROSECUTORS ORDER RAPPER 'DMX' TO BEGIN JAIL SENTENCE

Buffalo prosecutors have ordered rap star Earl "DMX" Simmons to surrender Monday to begin serving a 15-day jail term.

Simmons was arrested last March 3, pulled over for speeding on the Kensington Expressway after an appearance in Buffalo's HSBC Arena. Police subsequently found marijuana in his vehicle.

After Simmons pleaded guilty to a reduced charge of driving without a license, Cheektowaga Town Justice Ronald Kmiotek ordered the maximum jail term and $400 in fines.

Mark J. Mahoney, one of the Grammy-nominated rapper's lawyers, called the sentence excessive and asked the Court of Appeals in Albany to review the 15-day jail term.

Hours after the court rejected the bid for a last-ditch appeal, Simmons' attorneys were ordered to have him surrender Monday to begin serving his term in the Erie County Correctional Facility.

John J. DeFranks, first assistant Erie County district attorney, confirmed that Mahoney and James P. Harrington "have been asked to surrender him by the close of business Monday."

Associate Judge Albert M. Rosenblatt of the State Court of Appeals in Albany denied Simmons' plea to review the case.

"There is no question of law presented which ought to be reviewed by the Court of Appeals and permission (to appeal) is hereby denied," Rosenblatt wrote.

The Albany judge also noted that the stay of sentence Erie County Judge Sheila A. DiTullio granted Simmons, 30, last May 3 after he was jailed for several hours here is now "dismissed as academic."

DeFranks confirmed that the Erie County district attorney's office filed papers with the state's high court opposing any further delays in Simmons' jail term.

The bid for a high court review of the 15-day jail term Kmiotek imposed last May 3 was based on claims by Mahoney and Harrington that the jail term was unconstitutionally harsh.

On Jan. 25, acting State Supreme Court Justice Joseph P. McCarthy of Buffalo upheld the jail term, saying Simmons had waived his right to appeal by accepting the plea deal.

Under state sentencing laws, Simmons may spend as few as nine days in jail. He has credit for a day in jail, for the several hours he was in custody, and could get five days lopped off if his stay in jail is trouble-free.

About six weeks ago, Westchester County Judge Peter Rosato fined Simmons $90 and granted him a one-year conditional discharge on his guilty plea to an attempted weapons possession charge stemming from his indictment last June on marijuana and unlicensed handgun charges. Simmons had been arrested last January on I-684 in White Plains.

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