Opinion
Argued October 24, 1995
Decided November 30, 1995
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Donald J. Mark, J.
Howard K. Broder, Rochester, for appellant.
Howard R. Relin, District Attorney of Monroe County, Rochester (Alan Cruikshank of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Supreme Court promised defendant that it would sentence him to 2 1/2 to 5 years and temporarily release him on his own recognizance in exchange for his guilty plea to attempted burglary in the second degree, provided that he (1) return to court for sentencing in six weeks, (2) not get rearrested during that six-week period while the Probation Department conducted its presentence investigation, and (3) cooperate with the Probation Department in that investigation. Supreme Court advised defendant that in the event any one of these three conditions was violated, the court would not be bound by the plea agreement and could sentence him to 7 1/2 to 15 years. Defendant failed to return to court on the scheduled sentencing date and a bench warrant was issued. When defendant was brought into court on the warrant, the People informed the court that defendant had been arrested on two felonies during his presentence release. Supreme Court ordered defendant held without bail pending sentencing. Defendant subsequently moved to withdraw his guilty plea. Supreme Court denied the motion, noting that the colloquy regarding the plea agreement was clear. Supreme Court imposed an enhanced sentence of 3 1/2 to 7 years.
Defendant's failure to appear in court on the scheduled sentencing date constituted a violation of the plea agreement. Therefore, Supreme Court was no longer bound by the plea promise and could properly impose an enhanced sentence (see, People v Avery, 85 N.Y.2d 503, 507; People v Seaberg, 74 N.Y.2d 1, 7; People v Selikoff, 35 N.Y.2d 227, 238, cert denied 419 U.S. 1122). Under these facts, there was no need for Supreme Court to afford defendant an opportunity to challenge the foundation of his postplea arrests in accordance with People v Outley ( 80 N.Y.2d 702, 713, habeas corpus denied sub nom. Maietta v Irvin, 1995 WL 505558 [SD NY]), based on the independent, legally valid basis for the enhanced sentence.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
Order affirmed in a memorandum.