| People v Denegar |
| 2015 NY Slip Op 05971 [130 AD3d 1140] |
| July 9, 2015 |
| Appellate Division, Third Department |
[*1](July 9, 2015)
| The People of the State of New York, Respondent, vMahlon Denegar, Appellant. |
Tara Brower Wells, Latham, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Garry, J.P. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered June 22, 2012, convicting defendant upon his plea of guilty ofthe crimes of vehicular assault in the first degree and aggravated driving whileintoxicated.
Defendant was indicted on various charges stemming from a motor vehicle accidentthat occurred in November 2010 within Schenectady County. The accident caused injuryto a passenger who was under 15 years of age, and defendant was operating his vehiclewhile impaired by the use of alcohol and marihuana. In satisfaction of all the resultingcharges against him, defendant pleaded guilty to vehicular assault in the first degree andaggravated driving while intoxicated. The plea agreement included an aggregate prisonsentence of 2 to 4 years. After several adjournments, sentencing was scheduled for May25, 2012. The court was unavailable on that date and so adjourned the matter to June 8,2012. Defendant failed to appear on that date and on several dates thereafter. CountyCourt sentenced defendant, in absentia, to an enhanced sentence of 3
Defendant contends that County Court erred in imposing an enhanced sentence dueto his failure to appear at sentencing. Although he failed to preserve this challenge byobjection or an appropriate motion (see People v Botte, 120 AD3d 1488, 1489 [2014], lvdenied 24 NY3d 1118 [2015]), we choose to exercise our interest of justicejurisdiction to take corrective action (see People v Donnelly, 80 AD3d 797, 798 [2011]).
"A sentencing court may not impose an enhanced sentence unless it has informed thedefendant of specific conditions that the defendant must abide by or risk suchenhancement, or give the defendant an opportunity to withdraw his or her plea before theenhanced sentence is imposed" (People v Tole, 119 AD3d 982, 984 [2014] [citationsomitted]; see People v Parker, 57 NY2d 136, 141 [1982]). The People contendthat a written admonishment executed by defendant at his arraignment nearly ninemonths earlier was sufficient to apprise defendant of the consequences for failing toappear at each scheduled proceeding. However, "[w]hile written statements or affidavitsmay serve as a helpful supplement to a colloquy with the court concerning a plea or thewaiver of certain rights, these writings cannot be substituted for on-the-recorddiscussions between the defendant and the court" (People v McDermott, 68 AD3d 1453, 1454 [2009]). Here,although defendant executed a written admonishment at the time of arraignment, therecord reveals that County Court failed to ensure that, at the time of his plea, "defendantwas fully aware of the adverse consequences that might flow from his" failure to appearat sentencing (id.; seePeople v Lewis, 98 AD3d 1186, 1186-1187 [2012]; People v Lindsey, 80 AD3d1005, 1006 [2011]).
Notably, the record further reveals that defendant had appeared at each of themultiple court dates prior to the proceedings scheduled to occur in June 2012. CountyCourt later remarked that the first missed date might possibly have been caused in part byan adjournment based upon rescheduling. Apparently defendant's counsel did notprovide any written notice of any of the scheduled court dates; although counsel was notrequired to do so, this failure may have contributed to defendant's alleged confusion orhis lack of timely knowledge of the appearance dates.[FN*] As defendant argues, it does not appearthat he either fled or absconded; when a warrant was ultimately issued, he was readilyfound at his residence. Finally, the record reveals that he has a limited criminal history.Considering the foregoing, together with the failure to provide an adequateParker warning, we find that remittal is necessary so that the court may imposethe agreed-upon sentence or permit defendant an opportunity to withdraw his plea(see People v Tole, 119 AD3d at 984; People v McDermott, 68 AD3d at1454; People v Armstead,52 AD3d 966, 968 [2008]).
Egan Jr., Rose and Lynch, JJ., concur. Ordered that the judgment is modified, as amatter of discretion in the interest of justice, by vacating the sentence imposed; matterremitted to the County Court of Schenectady County for further proceedings notinconsistent with this Court's decision; and, as so modified, affirmed.
Footnote *:Defendant alsosubmitted phone records with his pro se brief, arguing that these demonstrate that hiscounsel failed to contact him and advise him of scheduled court dates. However, as thesedocuments are not part of the record, they were not considered upon the appeal (see People v Harden, 6 AD3d181, 182 [2004], lv denied 3 NY3d 641 [2004]).