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A jail cell in Alden is waiting for Earl Simmons, but despite a court order from a federal judge, the rap singer apparently has no plans to be there for lights out tonight.

Simmons, the Grammy-nominated entertainer known as DMX, was ordered by a judge to report to the Cheektowaga Police-Court Building today to start serving his long-delayed jail sentence, but his attorney said Simmons is in California and would not be available until Monday.

That drew an immediate response from the Erie County district attorney's office, which said Simmons can either surrender by the close of business today or have a warrant issued for his arrest.

The moves and countermoves were the latest in a case that dates from March, when Simmons was stopped for speeding on the Kensington Expressway on March 29, hours after performing in HSBC Arena. Police later found marijuana in the vehicle.

Cheektowaga Town Justice Ronald E. Kmiotek ordered the maximum jail term and $400 in fines after Simmons pleaded guilty to a reduced charge of driving without a license. Mark J. Mahoney, one of Simmons' local attorneys, contended that the sentence was excessive.

Mahoney appealed the sentence but was rebuffed at every level. Thursday, after conducting a 70-minute hearing on constitutional and procedural complaints raised about the case by Simmons' attorneys, U.S. District Judge Richard J. Arcara issued a two-line ruling refusing to issue a federal court stay of sentence.

John J. DeFranks, first assistant district attorney, said earlier Thursday that the collapse of Simmons' bid to avoid a stay in Erie County Correctional Facility in Alden means that the surrender order Kmiotek issued last week "is in full force and effect."

But later Thursday, Mahoney said his client has a "huge" commitment to spend the weekend, and possibly Monday, in California on a videotaping project.

Mahoney said the California venture "caught me by surprise," adding that Simmons will return to Western New York as soon as the California project is completed.

"I just hope they understand," Mahoney said.

Apparently they don't.

When advised of Simmons' California project, DeFranks said: "Should he not show up by the close of business Friday, (Kmiotek) will personally issue a bench warrant for his arrest."

Simmons, of White Plains, ultimately must serve about nine days of the 15-day jail term Kmiotek imposed May 3 on his fifth arrest for driving without a license since September 1998. Simmons was fined for his four earlier driving arrests in the Manhattan area.

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