| People v Haran |
| 2010 NY Slip Op 03000 [72 AD3d 1289] |
| April 15, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v William H.Haran, Appellant. |
—[*1] Kristy L. Sprague, District Attorney, Elizabethtown (Michael P. Langey of counsel), forrespondent.
Appeal from a judgment of the County Court of Essex County (Meyer, J.), rendered June 1,2007, convicting defendant upon his plea of guilty of the crime of scheme to defraud in the firstdegree.
In satisfaction of an eight-count indictment, defendant pleaded guilty to the crime of schemeto defraud in the first degree and waived his right to appeal. Under the terms of the pleaagreement, defendant was permitted to withdraw his plea and to plead guilty to a misdemeanor ifhe made restitution before the date of sentencing. If he did not, he was to be sentenced to a termof imprisonment to be determined by County Court in its sole discretion. During the pleaproceedings, County Court also administered Parker warnings. Thereafter, defendantfailed to appear for sentencing and County Court sentenced him in absentia to 1
Defendant contends that County Court erred in sentencing him in absentia and in imposing asentence greater than that provided under the plea agreement. Contrary to defendant's claim, therecord discloses that County Court properly complied with the requirements of People vParker (57 NY2d 136, 141 [1982]) before sentencing defendant in absentia. The courtspecifically advised defendant of the consequences of failing to appear for sentencing, one ofwhich was that he could be sentenced in absentia to any legally permissible term ofimprisonment, and defendant communicated his understanding on the record (see People v [*2]Bennett, 42 AD3d 813, 814 [2007]; compare People v McDermott, 68AD3d 1453 [2009]; People vCarter, 51 AD3d 1139 [2008]). The court proceeded to consider defendant's profferedreason for failing to appear, which it found unpersuasive. Under the circumstances presentedhere, the court did not err in sentencing defendant in absentia.
Moreover, it is undisputed that defendant did not comply with the conditions of the pleaagreement by making restitution prior to sentencing thereby entitling him to withdraw his pleaand to plead guilty to a misdemeanor. Notably, County Court specifically retained the discretionto sentence defendant to any legally permissible term of imprisonment for the crime of scheme todefraud in the first degree. Inasmuch as the sentence imposed was authorized by statute(see Penal Law § 70.00 [3] [b]) and defendant failed to comply with the terms ofthe plea agreement, County Court did not err in imposing an enhanced sentence (see People vTherrien, 301 AD2d 751, 752 [2003], lv denied 99 NY2d 633 [2003]).
Mercure, J.P., Lahtinen, Malone Jr., McCarthy and Garry, JJ., concur. Ordered that thejudgment is affirmed.