| People v Browning |
| 2007 NY Slip Op 08246 [44 AD3d 1067] |
| October 30, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Joseph Browning, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel; StephenMiller on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Braslow, J.),rendered August 16, 2004, convicting him of criminal sale of a controlled substance in the thirddegree (three counts) and criminal possession of a controlled substance in the third degree (threecounts), upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the County Court improperly imposed a greater sentence thanwhat had been promised is not preserved for appellate review as he neither objected to thesentence on that ground nor moved to vacate his plea (see People v Claudio, 64 NY2d858, 858-859 [1985]; People v Nicholson, 31 AD3d 468, 469 [2006]; People vLebron, 290 AD2d 565 [2002]; People v Sessoms, 287 AD2d 748 [2001]; Peoplev Howze, 243 AD2d 652 [1997]). In any event, when the defendant failed to comply with acondition of his plea agreement, by failing to appear on the scheduled sentencing date, the courtwas free to impose an enhanced sentence, which the defendant was warned would probablyhappen (see People v Figgins, 87 NY2d 840, 841 [1995]; People v Thomas, 2AD3d 758, 759 [2003]; People v Thorpe, 189 AD2d 903 [1993]). We note that the courtactually imposed a lesser sentence than it had promised in the event that the defendant violatedany conditions of his plea. Under these circumstances, the defendant cannot now be heard tocomplain (see People v Kazepis, 101 AD2d 816 [1984]).
Contrary to his additional contention on appeal, the defendant received the effective [*2]assistance of counsel, to the extent that the claim is reviewable ondirect appeal (see People v Benevento, 91 NY2d 708, 712 [1998]; People vBaldi, 54 NY2d 137, 147 [1981]). The defendant's attorney obtained grace periods prior toincarceration, and negotiated an advantageous plea agreement that substantially limited thedefendant's exposure to imprisonment (see People v Reels, 17 AD3d 488, 489 [2005];People v Torres, 302 AD2d 481 [2003]; People v Ladelokun, 192 AD2d 723, 724[1993]). Schmidt, J.P., Skelos, Lifson and Balkin, JJ., concur.