| People v Jannestil |
| 2013 NY Slip Op 02644 [105 AD3d 560] |
| April 18, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Kersey Jannestil, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sean T. Masson of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered July 2,2008, convicting defendant, upon his plea of guilty, of forgery in the second degree, andsentencing him, as a second felony offender, to a term of two to four years, unanimouslyaffirmed.
The court properly imposed a felony sentence based on defendant's violation of hisplea agreement. After being rejected by a drug program, defendant absconded, adoptedan alias, remained at large for 10 years, and was returned on a bench warrant. Defendantthus forfeited the opportunity to have his felony conviction replaced by a misdemeanorconviction (see People vJenkins, 11 NY3d 282 [2008]). Although the court could have imposed a moresevere sentence under the agreement, it imposed the minimum lawful sentence for asecond felony offender.
Given the circumstances, the court properly exercised its discretion in denyingdefendant's new attorney's request for an adjournment to permit further preparation forsentencing, and that ruling did not deprive defendant of effective assistance of counsel(see People v Chappotin, 56AD3d 327 [1st Dept 2008], lv denied 11 NY3d 923 [2009]). Both theattorney and defendant addressed the court at sentencing, and "there is no reason tobelieve that counsel could have persuaded the court to impose a more lenient sentence ifhe had received more time to prepare" (People v Krasnovsky, 45 AD3d 446, 447 [1st Dept 2007],lv denied 10 NY3d 767 [2008]). There was no need for either counsel or thecourt to inquire into defendant's 2008 arrest in Queens County, or his immigration status,because neither of these factors played any role in defendant's sentence.[*2]
To the extent defendant may seek to vacate hisplea, he must do so by motion in the trial court upon a proper evidentiary record.Concur—Andrias, J.P., Friedman, Moskowitz, Freedman and Manzanet-Daniels,JJ.