| People v Rodman |
| 2013 NY Slip Op 01670 [104 AD3d 1186] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DavidC. Rodman, Appellant. |
—[*1] Gregory S. Oakes, District Attorney, Oswego, for respondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.),rendered July 7, 2011. The judgment convicted defendant, upon his plea of guilty, ofgrand larceny in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of grand larceny in the fourth degree (Penal Law § 155.30 [1]). We rejectdefendant's contention that County Court erred in sentencing him in absentia. Although adefendant has the right to be present at every material stage of trial (see People vCiaccio, 47 NY2d 431, 436 [1979]), including sentencing (see CPL 380.40[1]), that right may be waived (see People v Parker, 57 NY2d 136, 139 [1982])."If a defendant fails to appear at sentencing, he or she may be deemed to have waived theright to be present only if the defendant was previously advised of the consequences offailing to appear at sentencing" (People v Syrell, 42 AD3d 947, 947-948 [2007]; see People v Major, 68 AD3d1244, 1245 [2009], lv denied 14 NY3d 772 [2010]). "Even when. . . there has been a valid waiver, however, the sentencing court must, interalia, inquire into the possibility of locating defendant within a reasonable period of timebefore it may exercise its discretion to sentence defendant in absentia" (Syrell, 42AD3d at 948; see Parker, 57 NY2d at 142; Major, 68 AD3d at 1245).
Defendant does not dispute that he was informed of the consequences of his failureto appear at sentencing. Rather, defendant contends only that the court erred in imposinga sentence without first inquiring into the circumstances of his failure to appear (seegenerally Parker, 57 NY2d at 142). We reject that contention. After defendantpleaded guilty, the court adjourned the matter on several occasions based on defendant'sfailure to appear. Additionally, before imposing the sentence, the court inquired intodefense counsel's efforts to locate defendant. Under the circumstances presented here, wecannot conclude that the Court abused its discretion by sentencing defendant in absentia(see People v Torra, 8AD3d 751, 751-752 [2004]; People v Howington, 216 AD2d 960, 960[1995], lv denied 86 NY2d 781 [1995]).
Contrary to defendant's further contention, the record supports a determination thathe wilfully failed to pay restitution prior to the sentencing date, and thus the court did noterr in imposing an enhanced sentence based on that failure (see generally People vHassman, 70 AD3d [*2]716, 717-718 [2010]). It isundisputed that defendant failed to comply with the conditions of the sentencingcommitment, and the court specifically informed defendant at the time of the plea that, ifhe failed to appear at sentencing, he could be sentenced to an indeterminate term of1