| People v Bove |
| 2009 NY Slip Op 05652 [64 AD3d 812] |
| July 2, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robert Bove,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered February 25, 2008, convicting defendant upon his plea of guilty of the crime ofattempted grand larceny in the second degree and criminal possession of a forged instrument inthe second degree.
Defendant and a codefendant were charged in a 39-count indictment with numeroustheft-related crimes after they, among other things, engaged in a series of fraudulent real estatetransactions. In satisfaction of the indictment, defendant pleaded guilty to attempted grandlarceny in the second degree as well as criminal possession of a forged instrument in the seconddegree, and also waived his right to appeal. Under the terms of the plea agreement, defendantwas to be sentenced as a second felony offender to 2½ to 5 years in prison for each crime,with County Court reserving decision on whether the sentences would run consecutively orconcurrently. County Court, however, warned defendant that if he failed to appear for sentencingor was arrested before then, it would not be bound by the plea agreement and could imposemaximum consecutive sentences for the crimes.
Defendant failed to appear in court on the date set for sentencing, allegedly because he hadbeen in an out-of-state hospital the day before and was physically unable to travel to New Yorkdue to a heart condition. Sentencing was adjourned for one week and a bench warrant was [*2]thereafter issued for defendant's arrest. When defendant finallyappeared at sentencing, County Court advised him that he had breached the plea agreement byfailing to appear on the original sentencing date. Defendant, in turn, moved to withdraw his plea.County Court denied the motion and imposed an enhanced sentence of 3 to 6 years in prison foreach crime, to run consecutively. Defendant appeals.
We affirm. "An agreed-upon sentence may be enhanced if it is appropriately established thatthe defendant has violated the conditions of the plea agreement" (People v Davis, 30 AD3d 893,894 [2006], lv denied 7 NY3d 847 [2006] [citations omitted]; see People vFiggins, 87 NY2d 840, 841 [1995]). Appearance in court on the original sentencing date wasclearly made a condition of the plea agreement and defendant's failure to comply with it justifiedCounty Court's imposition of an enhanced sentence (see People v Flanders, 53 AD3d 866, 866 [2008]; People vCaines, 268 AD2d 790, 791 [2000], lv denied 95 NY2d 833 [2000]). Notably,County Court afforded defendant the opportunity to put forth a plausible explanation for hisinitial failure to appear at sentencing (see People v Goldstein, 51 AD3d 1271, 1278 [2008], affd12 NY3d 295 [2009]). Although defendant claimed that medical problems prevented him fromappearing in court, he failed to provide documentation or other proof establishing that hesuffered from a serious medical condition during the relevant time period that rendered himunable to attend. In view of this, County Court could reasonably reject his proffered excuse asunpersuasive (see People vThomas, 56 AD3d 815, 816 [2008]). As for defendant's assertion that the enhancedsentence is harsh and excessive, this claim is precluded by his knowing, voluntary and intelligentwaiver of the right to appeal where, as here, County Court informed him of the maximumpotential sentence that could be imposed for noncompliance with the conditions of the pleaagreement (see People v Faulkner,54 AD3d 1134, 1135 [2008], lv denied 11 NY3d 854 [2008]; People v Terrell, 41 AD3d 1044,1045 [2007]).
Defendant's remaining contention, as advanced in his pro se brief, has been reviewed andfound to be lacking in merit.
Spain, J.P., Kane, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.