| People v Sassenscheid |
| 2018 NY Slip Op 04037 [162 AD3d 1108] |
| June 7, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Matthew Sassenscheid, Appellant. |
Donna Maria Lasher, Youngsville, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered April 9, 2015, convicting defendant upon his plea of guilty of the crime of grand larcenyin the third degree.
Defendant pleaded guilty to grand larceny in the third degree in satisfaction of a two-countindictment, admitting that, while employed as a cashier, he stole cash from his register on morethan 10 occasions, in a total amount exceeding $1,000, which he gave to his codefendant, hishusband, who was posing as a customer. Pursuant to the plea agreement, the People promised torecommend a sentence of 1 to 3 years in prison. In turn, County Court promised to impose aprison term of 2 to 7 years if defendant were determined to be eligible for shock incarceration(see Correction Law § 865 [1]), or a prison term of 1 to 3 years if he weredeemed ineligible. Defendant's release on his own recognizance was continued pendingsentencing, and the January 2015 sentencing date was adjourned at his request. After defendantfailed to appear at the April 2, 2015 adjourned date set for sentencing, the court issued a benchwarrant and again adjourned sentencing. When defendant failed to appear at the rescheduledsentencing on April 9, 2015, the court sentenced him in absentia to a prison term of2
Contrary to defendant's contention, his combined oral and written waiver of appeal was [*2]valid (seePeople v Bryant, 28 NY3d 1094, 1096 [2016]; People v Tulip, 150 AD3d 1564, 1565-1566 [2017]). To that end,County Court advised defendant that he had a right to appeal to a higher court, made clear that awaiver of that right would be final, explained that it was separate and distinct from thetrial-related rights he was automatically forgoing as a consequence of his guilty plea andascertained that he had no questions (seePeople v Lopez, 6 NY3d 248, 256 [2006]; People v Sharpe, 159 AD3d 1192, 1193 [2018]). Counselrepresented that he had reviewed the detailed written appeal waiver—which adequatelyoutlined the rights that defendant was waiving—with defendant, who then confirmed thathe had no questions before he signed it in court (see People v Webb, 157 AD3d 1132, 1132 [2018]; People v Zeller, 153 AD3d 1049,1050-1051 [2017]). While it is preferable that the court also explicitly ask a defendant if he orshe has read the written waiver, under the circumstances, we are satisfied that the oral colloquy incombination with the written waiver reviewed with counsel establish that defendant's appealwaiver was knowing, voluntary and intelligent (see People v Nichols, 155 AD3d 1186, 1187 [2017]; People vZeller, 153 AD3d at 1050-1051; People v Empey, 144 AD3d 1201, 1202-1203 [2016], lvdenied 28 NY3d 1144 [2017]).
Defendant's claim that County Court abused its discretion in sentencing him in absentiasurvives his waiver of appeal (seePeople v Klein, 124 AD3d 1143, 1143 [2015]). "While a defendant's right to be presentat every material stage of a trial is well established, it may be waived. For there to be such awaiver, however, it must be shown that the defendant was informed of the right to be present atthe proceedings and of the consequences for failing to appear, including the fact that theproceedings would go forward in his or her absence" (People v Major, 68 AD3d 1244, 1245 [2009] [citations omitted],lv denied 14 NY3d 772 [2010]). Moreover, before proceeding in the absence of adefendant who fails to appear, the court must conduct an inquiry into the reason for the absenceand consider whether the defendant could be located within a reasonable period of time (see People v Rodman, 104 AD3d1186, 1186-1187 [2013], lv denied 22 NY3d 1202 [2014]; People v Major,68 AD3d at 1245; see also People vAtkins, 154 AD3d 1064, 1065-1068 [2017], lv dismissed 31 NY3d 981[2018]).
Defendant does not dispute that he was properly informed of the right to be present at hissentencing or of the consequences of failing to appear. Rather, he asserts that County Court erredby sentencing him in absentia without first inquiring into the reason for his absence. We agree.When defendant did not appear for sentencing on April 2, 2015, the court noted that defendanthad been present for "each and every other occasion," before issuing a bench warrant andadjourning sentencing to April 9, 2015. When defendant again failed to appear, his counselrepresented that the only contact he had had with defendant was a conversation on April 1, 2015,when defendant informed counsel that he had additional doctors' appointments to attend, andcounsel advised him to appear in court for sentencing on April 2, 2015. There is no indication inthe record that defendant was advised that sentencing was adjourned to April 9, 2015. The courtwas aware of defendant's medical condition, which had required hospitalization in October 2014and was the reason that sentencing was first adjourned from January 2015 to April 2, 2015. Thecourt specifically observed that no explanation for defendant's absence had been provided bydefendant or his counsel but, nonetheless, made no inquiry on the record into the status of anyefforts to locate defendant since April 2, when it had issued the bench warrant, before itproceeded to sentence him in absentia. In light of its failure to make any inquiry whatsoever intothe reason for defendant's absence, County Court erred when it sentenced defendant inabsentia.[FN*] [*3]Defendant's remaining contentions have been renderedacademic.
Egan Jr., J.P., Lynch, Clark and Mulvey, JJ., concur. Ordered that the judgment is modified,on the law, by vacating the sentence imposed; matter remitted to the County Court of UlsterCounty for resentencing; and, as so modified, affirmed.
Footnote *:Although not part of this appeal,the record shows that defendant's motion to vacate his sentence provided County Court with anopportunity to correct its error by conducting an inquiry into the reason for defendant's absenceand by affording him the opportunity to speak concerning the sentence that had been imposed (see e.g. People v Hall, 78 AD3d1328, 1329 [2010]). However, the court denied defendant's motion without making anyinquiry into the reason for his absence.