| People v Holmes |
| 2009 NY Slip Op 07890 [67 AD3d 1069] |
| November 5, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robert W.Holmes, Also Known as Robert W. Holmes III, Appellant. |
—[*1] William G. Gabor, District Attorney, Wampsville (Elizabeth S. Healy of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Madison County (McDermott, J.),rendered January 14, 2009, convicting defendant upon his plea of guilty of the crimes ofaggravated unlicensed operation of a motor vehicle in the first degree and aggravated drivingwhile intoxicated.
Pursuant to a plea agreement, defendant entered a guilty plea to one count of aggravatedunlicensed operation of a motor vehicle in the first degree, a class E felony, and one count ofaggravated driving while intoxicated, a misdemeanor. The plea satisfied an eight-countindictment stemming from defendant's arrest in April 2008 for driving without a license in theCity of Oneida, Madison County, with a blood alcohol level of .21% and, shortly after hisrelease, his arrest in May 2008 in the Town of Lenox, Madison County, for again drivingwithout a license with a blood alcohol level of .18%. Defendant's license had been revoked in1998, following a conviction for driving while ability impaired. Under the plea terms, defendantwas released on interim probation and, if he cooperated with the Probation Department and hewere determined to be an acceptable candidate for probation, and abided by all of the terms andconditions of the plea and his interim probation, he would be sentenced to time served and fiveyears of probation. If he were deemed not suitable for probation, but cooperated with theProbation Department and complied with the conditions and terms of his plea and interim [*2]probation, he was promised a sentence cap of one year in jail;however, if he violated any of those conditions, he would be subject to the full sentence of1
To the extent that defendant claims that the plea terms—specifically, County Court'saforementioned sentencing commitment under different scenarios—were not clear, wedisagree. The record reflects that he was unambiguously and repeatedly informed that a violationof any of the conditions of his plea and interim probation while awaiting sentencing would be"considered a deal breaker" and he would be bound by the plea, but subject to the maximumsentence of 1
Further, contrary to defendant's claims, the terms and conditions of his interim probationwere plainly spelled out for him during the plea colloquy. Without a doubt, as County Courtconcluded, defendant's subsequent admitted use of marihuana, his arrest for assaulting hisgirlfriend, his "no show" for his scheduled alcohol and drug evaluation directed by the ProbationDepartment, his noncooperation with the Probation Department and his failure to appear atsentencing without a credible explanation all constituted flagrant violations of valid plea terms,relieving the court of any sentencing promises. As such, we see no error or abuse of discretion inthe court's imposition of an enhanced sentence (see People v Fleming, 50 AD3d 1390, 1391 [2008]; see alsoPeople v Hicks, 98 NY2d 185, 188-189 [2002]; People v Figgins, 87 NY2d 840, 841[1995]). Moreover, given defendant's extensive criminal history, poor performance while oninterim probation, lack of remorse, and the very real ongoing danger that he represents to publicsafety by his pattern of substance abuse and drunk driving, the sentence imposed was not harshor excessive.
We likewise find that defendant was meaningfully represented by counsel, who madepretrial motions and discovery requests, negotiated a very favorable plea agreement (whichdefendant himself sabotaged), and made appropriate objections and a successful adjournmentrequest when defendant failed to appear (see People v Benevento, 91 NY2d 708, 712[1998]; People v Patnode, 60 AD3d1109, 1111 [2009]). Counsel had no duty, as defendant suggests, to devise an alternateexplanation for defendant's nonappearance or to request a violation hearing that would have beenfutile given defendant's numerous documented or admitted failures. Indeed, defendant expressedsatisfaction with counsel when County Court inquired (see People v Dixon, 62 AD3d 1214, 1214-1215 [2009], lvdenied 13 NY3d 743 [2009]), and we find no merit to his claims to the contrary raised forthe first time on appeal.
Peters, J.P., Rose, Kane and Stein, JJ., concur. Ordered that the judgment is affirmed.