Opinion
835 KA 22-00335
11-17-2023
The PEOPLE of the State of New York, Respondent, v. Garry E. BROWN, III, Defendant-Appellant.
TIMOTHY J. BRENNAN, AUBURN, FOR DEFENDANT-APPELLANT. BRITTANY GROME ANTONACCI, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
TIMOTHY J. BRENNAN, AUBURN, FOR DEFENDANT-APPELLANT.
BRITTANY GROME ANTONACCI, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, MONTOUR, GREENWOOD, AND NOWAK, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of aggravated driving while intoxicated ( Vehicle and Traffic Law §§ 1192 [2-a] [b] ; 1193 [1] [c] [i] [B]) and aggravated unlicensed operation of a motor vehicle in the first degree ( § 511 [3] [a] [i]; [b]). Defendant contends that County Court erred in imposing an enhanced sentence without holding a hearing or otherwise providing defendant with sufficient time to speak. That contention is not preserved for our review inasmuch as defendant "failed to request such a hearing and did not move to withdraw his plea on that ground" ( People v. Scott , 200 A.D.3d 1729, 1730, 155 N.Y.S.3d 848 [4th Dept. 2021] ). In any event, the contention lacks merit. Under the circumstances, the court was not required to conduct a hearing, and it provided "[b]oth defendant and his counsel ... ample opportunity to refute the court's assertions that defendant had violated the plea terms" ( People v. Albergotti , 17 N.Y.3d 748, 750, 929 N.Y.S.2d 18, 952 N.E.2d 1010 [2011] ; see generally People v. Semple , 23 A.D.3d 1058, 1059-1060, 804 N.Y.S.2d 192 [4th Dept. 2005], lv denied 6 N.Y.3d 852, 816 N.Y.S.2d 758, 849 N.E.2d 981 [2006] ), specifically by his failure to appear at sentencing and failure to appear in court until nearly two years later, when he was apprehended on a bench warrant (see generally People v. Baker , 204 A.D.3d 1471, 1472, 166 N.Y.S.3d 816 [4th Dept. 2022], lv denied 38 N.Y.3d 1069, 171 N.Y.S.3d 462, 191 N.E.3d 414 [2022] ; People v. Winship , 26 A.D.3d 768, 768-769, 809 N.Y.S.2d 722 [4th Dept. 2006], lv denied 6 N.Y.3d 899, 817 N.Y.S.2d 634, 850 N.E.2d 681 [2006] ). Contrary to defendant's further contention, the enhanced sentence is not unduly harsh or severe.
We note, however, that the certificate of disposition, certificate of conviction, and uniform sentence and commitment form must be amended to correct a clerical error (see People v. Thurston , 208 A.D.3d 1629, 1630, 174 N.Y.S.3d 663 [4th Dept. 2022] ). All three forms erroneously state that defendant was convicted of aggravated unlicensed operation of a motor vehicle in the first degree under Vehicle and Traffic Law § 511 (3) (3), and each should be corrected to reflect that he was convicted of that offense under § 511 (3) (a) (i).