| People v Carter |
| 2009 NY Slip Op 06051 [64 AD3d 1089] |
| July 30, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ricky L.Carter Jr., Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland (Karen L. Howe of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Cortland County (Campbell, J.),rendered June 5, 2008, which resentenced defendant following his conviction upon his plea ofguilty of the crime of burglary in the third degree.
In full satisfaction of a six-count indictment, defendant pleaded guilty to burglary in the thirddegree with the promise of a prison sentence of 2 to 4 years. County Court conditioned suchsentence, pursuant to the plea agreement, on defendant's promise to return to court on the date ofsentencing, cooperate with the presentence investigation and avoid rearrest before sentencing.The court also informed defendant that if he failed to abide by the agreed conditions, it wouldnot be bound by the plea agreement and he could receive the maximum possible prison term.
When defendant thereafter failed to appear for sentencing, County Court sentenced him inabsentia, as a second felony offender, to the maximum permissible term of 3½ to 7 years inprison. On appeal, this Court vacated that sentence, finding that County Court did notspecifically inform defendant at the time of his plea that if he failed to appear, sentencing couldproceed in his absence and, moreover, that the court failed to consider all appropriate factorsbefore sentencing him in absentia, including the possibility that defendant could be located in areasonable period of time (51 AD3d 1139 [2008]).[*2]
At resentencing, defendant acknowledged that heintentionally failed to appear at his original sentencing with no valid excuse. He was thensentenced to 3½ to 7 years in prison and, among other things, ordered to reimburse the costof his extradition. Defendant now appeals, and we affirm.
Defendant first contends that County Court improperly issued an enhanced sentence basedupon his failure to appear at his initial sentencing. However, defendant forfeited his right tochallenge the severity of his enhanced sentence by virtue of his knowing, voluntary andintelligent waiver of his right to appeal (see People v Marshall, 25 AD3d 876, 876-877[2006], lv denied 6 NY3d 850 [2006]; People v Hill, 18 AD3d 966, 967 [2005],lv denied 5 NY3d 763 [2005]; People v Schryver, 306 AD2d 626, 626 [2003],lv denied 100 NY2d 598 [2003]).[FN*]Furthermore, we find that the enhanced sentence was not the result of vindictiveness (seePeople v Perez, 35 AD3d 1030, 1031-1032 [2006], lv denied 9 NY3d 868 [2007]).
Defendant next contends that the People failed to comply with the plea agreement byrecommending an enhanced sentence at resentencing. Although defendant's waiver of appealdoes not foreclose this argument (see People v Hoeltzel, 290 AD2d 587, 588 [2002]), wefind it unavailing. While a prosecutor is generally bound to honor a sentencing recommendationthat is made pursuant to plea negotiations (see People v Clark, 61 AD3d 1179, 1182[2009]; People v Hoeltzel, 290 AD2d at 588), where, as here, the defendant firstbreaches the terms of the plea agreement, the People are justified in recommending an enhancedsentence (see People v Stevens, 41 AD3d 1030, 1031-1032 [2007]).
Finally, County Court did not err in ordering defendant to pay the cost of his extraditioninasmuch as he committed to such payment as part of his plea agreement (see People vBurke, 47 AD3d 1161, 1161 [2008]; People v Perry, 261 AD2d 650, 650-651[1999], lv denied 93 NY2d 1024 [1999]).
We have examined defendant's remaining contentions and find them to be without merit.
Mercure, J.P., Malone Jr., Stein and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Were we to consider the meritsof defendant's argument, we would nonetheless find that he was clearly informed by CountyCourt that he would face the maximum potential sentence were he to violate the terms of his pleaagreement. Thus, when he failed to appear for his original sentencing, the court had a legallyvalid basis for issuing the enhanced sentence (see People v Marshall, 25 AD3d at 877;People v Hill, 18 AD3d at 967; People v Perham, 263 AD2d 766, 767 [1999],lv denied 93 NY2d 1045 [1999]).