People v Baez

2009 NY Slip Op 08522 [67 AD3d 1204]

November 19, 2009

Appellate Division, Third Department

As corrected through Wednesday, January 6, 2010

The People of the State of New York, Respondent, v Franklin M.Baez, Appellant.

—[*1]Teresa C. Mulliken, Harpersfield, for appellant.

Richard D. Northrup Jr., District Attorney, Delhi, for respondent.

Appeal from a judgment of the County Court of Delaware County (Becker, J.), renderedAugust 25, 2008, convicting defendant upon his plea of guilty of the crimes of driving whileintoxicated (two counts), aggravated unlicensed operation of a motor vehicle in the first degree,false personation and obstructing governmental administration in the second degree and theviolations of speeding and failure to wear a seatbelt.

Defendant pleaded guilty to all counts of an eight-count indictment, which included felonycharges of driving while intoxicated (two counts) and aggravated unlicensed operation of amotor vehicle in the first degree, pursuant to a plea bargain by which he would receive aone-year sentence in county jail and $2,000 in fines. However, when defendant did not appearfor his originally scheduled sentencing, he was thereafter sentenced to an aggregate prison termof 11/3 to 4 years and assessed nearly $11,000 in fines. Defendant now appeals,challenging the severity of his sentence.

We affirm. County Court is vested with the discretion to issue an enhanced sentence when,as here, a defendant is put on notice of the consequences of failing to appear for sentencingwithout a valid excuse and he or she, thereafter, fails to appear (see People v Carter, 64 AD3d1089, 1090 n, 1090-1091 [2009]; People v Marshall, 25 AD3d 876, 877 [2006], lv denied 6NY3d 850 [2006]). Here, the court was very explicit in repeatedly warning defendant during theplea hearing that, should he fail to appear for sentencing, he could face the maximum sentence of11/3 to 4 years on the felony counts and the court could hit him "very, very hard"on the fines. [*2]Despite the admonitions, defendant failed toappear, with the proffered excuse that he was unable to secure transportation from his home inNew Jersey. As such, we find that County Court did not abuse its discretion in issuing defendantan enhanced sentence.

Mercure, J.P., Lahtinen, Kane, Kavanagh and McCarthy, JJ., concur. Ordered that thejudgment is affirmed.