Opinion
257 KA 14-00226
03-20-2015
The PEOPLE of the State of New York, Respondent, v. William D. BLAKE, Defendant–Appellant.
Charles A. Marangola, Moravia, for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Nathan J. Garland of Counsel), for Respondent.
Charles A. Marangola, Moravia, for Defendant–Appellant.
Jon E. Budelmann, District Attorney, Auburn (Nathan J. Garland of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.
Opinion
MEMORANDUM:On appeal from a judgment convicting him upon his plea of guilty of, inter alia, two counts of criminal sale of a controlled substance in the fourth degree (Penal Law § 220.34[1] ), defendant contends that County Court erred in imposing an enhanced sentence, based on his failure to appear at sentencing, without affording him an opportunity to withdraw his plea. “That contention is not preserved for our review because defendant did not object to the enhanced sentence, nor did he move to withdraw the plea or to vacate the judgment of conviction” on that ground (People v. Sprague, 82 A.D.3d 1649, 1649, 919 N.Y.S.2d 433, lv. denied 17 N.Y.3d 801, 929 N.Y.S.2d 110, 952 N.E.2d 1105 ; see
People v. Mills, 90 A.D.3d 1518, 1518, 934 N.Y.S.2d 890, lv. denied 18 N.Y.3d 960, 944 N.Y.S.2d 489, 967 N.E.2d 714 ; People v. Perkins, 291 A.D.2d 925, 926, 738 N.Y.S.2d 274, lv. denied 98 N.Y.2d 654, 745 N.Y.S.2d 512, 772 N.E.2d 615 ). In any event, defendant's contention lacks merit. The record establishes that the court informed defendant during the plea proceeding that it could impose an enhanced sentence in the event that he failed to appear at sentencing. “By failing to appear at the scheduled sentencing, defendant violated the terms of the plea agreement and [the c]ourt was no longer bound by the agreed-upon sentence ... Notwithstanding defendant's proffered excuse for his absence, we [conclude] that the court was justified in imposing the enhanced sentence” (People v. Goodman, 79 A.D.3d 1285, 1286, 911 N.Y.S.2d 688 ; see People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 ; Perkins, 291 A.D.2d at 926, 738 N.Y.S.2d 274 ). Furthermore, the court was not required to conduct further inquiry into the reason for defendant's absence from the scheduled sentencing proceeding because, “had there been any plausible ... reason for defendant's failure to appear on the ... scheduled sentencing date[ ], it is to be expected that defendant would have been prepared at [the rescheduled] sentencing with some supporting documentation, particularly after a warrant had been issued to secure his appearance” (Goldstein, 12 N.Y.3d at 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 ; see People v. Winters, 82 A.D.3d 1691, 1691, 919 N.Y.S.2d 438, lv. denied 17 N.Y.3d 810, 929 N.Y.S.2d 570, 953 N.E.2d 808 ).
The sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.