| People v Brown |
| 2012 NY Slip Op 08580 [101 AD3d 1267] |
| December 13, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Mark Brown,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Schenectady County (Giardino, J.),rendered July 14, 2011, convicting defendant upon his plea of guilty of the crime of attemptedrobbery in the second degree.
Defendant was charged in an indictment with two counts of robbery in the second degree andgrand larceny in the fourth degree. At his arraignment, defendant executed a writtenParker admonishment, which included a warning that the case, including sentencing,would proceed in his absence, and County Court (Hoye, J.) confirmed that defendant understoodthat he could be sentenced in absentia. Defendant subsequently pleaded guilty to attemptedrobbery in the second degree in full satisfaction of the charges and waived his right to appeal.
Pursuant to the plea agreement, defendant was to be sentenced as a persistent violent felonyoffender to a term of imprisonment of 12 years to life. County Court (Giardino, J.) informeddefendant that if he failed to appear at sentencing, he could be sentenced to the maximum prisonterm of 25 years to life. After defendant failed to appear at sentencing, County Court ultimatelysentenced him, as a persistent violent felony offender, to a prison term of 25 years to life.Defendant appeals.[*2]
We affirm. Initially, we reject defendant's contention thathe did not validly waive his right to appeal. The record reflects that County Court distinguishedthe right to appeal from the rights forfeited by his guilty plea, and defendant affirmed hisunderstanding of the consequences of the waiver. Thereafter, defendant executed a writtenwaiver acknowledging that he had discussed the right to appeal with counsel and was voluntarilywaiving it. Accordingly, we conclude that defendant's waiver of the right to appeal was valid (see People v Tolliver, 92 AD3d1024, 1024 [2012]; People vShaver, 92 AD3d 978, 979 [2012], lv denied 18 NY3d 998 [2012]).
Defendant's contention that County Court erred in imposing an enhanced sentence on him inabsentia survives his appeal waiver (seePeople v Hall, 78 AD3d 1328, 1328 [2010]; People v Terrell, 41 AD3d 1044, 1045 [2007]). The record reveals,however, that defendant was advised that sentencing could proceed in his absence and of thepotential sentence he faced if he failed to appear for sentencing (see People v Haran, 72 AD3d1289, 1289-1290 [2010]; People vBaez, 67 AD3d 1204, 1204 [2009], lv denied 14 NY3d 797 [2010]). Under thesecircumstances, County Court properly sentenced defendant in absentia. Finally, defendant's claimthat the enhanced sentence is harsh and excessive is precluded by his waiver of the right toappeal his conviction and sentence, as he was informed of the consequences of his failure toappear at sentencing (see People vCarter, 64 AD3d 1089, 1090 [2009], lv denied 13 NY3d 835 [2009]; 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]).
Mercure, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed.