| People v Winters |
| 2011 NY Slip Op 02283 [82 AD3d 1691] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ricky L.Winters, Appellant. |
—[*1] Ricky L. Winters, defendant-appellant pro se. Jon E. Budelmann, District Attorney, Auburn (Diane M. Adsit of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), renderedDecember 10, 2009. The judgment convicted defendant, upon his plea of guilty, of driving whileintoxicated, a class D felony (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty oftwo counts of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [2], [3];§ 1193 [1] [c] [former (ii)]), and he contends that County Court erred in imposing anenhanced sentence without affording him an opportunity to withdraw his plea. We reject thatcontention. The record establishes that the court informed defendant during the plea proceedingthat it could impose an enhanced sentence in the event that he failed to appear at sentencing. "Byfailing to appear at the scheduled sentencing, defendant violated the terms of the plea agreementand [the c]ourt was no longer bound by the agreed-upon sentence . . .Notwithstanding defendant's proffered excuse for his absence, we [conclude] that the court wasjustified in imposing the enhanced sentence" (People v Goodman, 79 AD3d 1285, 1286 [2010]; see People v Goldstein, 12 NY3d295, 301 [2009]; People v Perkins, 291 AD2d 925 [2002], lv denied 98NY2d 654 [2002]). The sentence is not unduly harsh or severe.
In his pro se supplemental brief, defendant contends that he was denied effective assistanceof counsel because the attorney assigned to represent him at sentencing failed to take notesduring a conversation with defendant and failed to inform the court, during a conference inchambers, of issues that defendant wished to be addressed. That contention is based upon mattersoutside the record on appeal and is thus properly raised by way of a motion pursuant to CPLarticle 440 (see People v Jones, 79AD3d 1773 [2010]; People vManuel, 79 AD3d 1817 [2010]). Defendant further contends that the attorney assignedto represent him at sentencing made statements adverse to defendant during the sentencingproceeding. Even assuming, arguendo, that the attorney took a position adverse to defendant, weconclude that reversal is not warranted because the statements in question did not[*2]"contribute to any rulings against defendant" (People v Guerra-Pena, 46 AD3d1469 [2007], lv denied 10 NY3d 765 [2008]; see People v Moye, 13 AD3d 1123 [2004], lv denied 4NY3d 833 [2005]).
We have reviewed the remaining contention of defendant in his pro se supplemental briefand conclude that it is without merit. Present—Scudder, P.J., Smith, Peradotto, Lindleyand Green, JJ.