| People v Crowder |
| 2013 NY Slip Op 07090 [110 AD3d 1384] |
| October 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AdamCrowder, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered July 28, 2011, convicting defendant upon his plea of guilty of thecrime of attempted burglary in the second degree.
In satisfaction of an indictment charging him with burglary in the second degree andcriminal mischief in the third degree, defendant pleaded guilty to attempted burglary inthe second degree and waived his right to appeal. The plea agreement provided that, ifdefendant complied with the conditions set forth by County Court, he would besentenced to a prison term of two years followed by 1½ to 3 years of postreleasesupervision. However, if defendant did not comply with the conditions of the pleaagreement, the court could impose the maximum allowable prison sentence of up toseven years and such sentence could be imposed in defendant's absence. At the time theplea was entered, however, the court did not mention any period of postreleasesupervision. Defendant failed to appear for his initial sentencing date withoutexplanation, and County Court adjourned sentencing for two weeks. When defendantagain failed to appear at the adjourned sentencing date without explanation, the courtsentenced him to a prison term of five years followed by three years of postreleasesupervision. This sentence was then confirmed at a subsequent hearing at whichdefendant was present. Defendant now appeals.[*2]
While defendant's contention that his plea wasnot knowing and voluntary because County Court failed to reiterate the term ofpostrelease supervision at the time of his plea survives his waiver of appeal, we find thatthis argument was not preserved for our review. Although the court omitted mention ofpostrelease supervision during the plea colloquy, defendant was aware of that componentof the sentence prior to entering his plea, as the court had advised him of it during aprevious appearance where the plea offer was described, defense counsel was presentwhen the court imposed a sentence on defendant in abstentia that included such a term,and the court mentioned the term of postrelease supervision at the outset of theconfirmation hearing. Because defendant was aware of and advised that the courtintended to impose a term of postrelease supervision despite not having mentioned itduring the plea colloquy, but he did not object on that ground to raise the issue when itcould have been addressed before the sentence was confirmed, the issue is not preservedfor appellate review (see Peoplev Murray, 15 NY3d 725, 727 [2010]; People v Young, 85 AD3d 1489, 1489-1490 [2011]; People v Lee, 80 AD3d1072, 1073 [2011], lv denied 16 NY3d 833 [2011]; see also People v Cruz, 92AD3d 1138, 1139 [2012], lv denied 19 NY3d 863 [2012]).
Nor are we convinced by defendant's argument that County Court imposed theenhanced sentence without making adequate inquiry into the reason for defendant'sfailure to comply with the terms of the plea agreement. Defendant was repeatedly advisedthat, if he failed to comply with the conditions of the plea agreement, the court would notbe bound by the sentencing commitment and could impose up to the maximum sentenceof seven years in prison. It is undisputed that defendant failed to comply with the pleaconditions, as he did not appear for sentencing and he admitted to using drugs during thisperiod. County Court provided defendant with an opportunity to explain his failures atthe sentence confirmation hearing and found the proffered excuses to be unpersuasive.Under the circumstances, we do not find any error in the court's imposition of anenhanced sentence without a full hearing (see People v McDevitt, 97 AD3d 1039, 1041 [2012], lvdenied 20 NY3d 987 [2012]; People v Haran, 72 AD3d 1289, 1289-1290 [2010]; People v Saucier, 69 AD3d1125, 1125-1126 [2010]). Finally, defendant's claim that the enhanced sentence isharsh and excessive is precluded by his valid waiver of the right to appeal, given that thecourt previously informed him of the potential consequences of failing to appear forsentencing (see People vBrown, 101 AD3d 1267, 1268 [2012], lv denied 21 NY3d 1014 [2013];People v Hill, 18 AD3d966, 967 [2005], lv denied 5 NY3d 763 [2005]; People v Schryver,306 AD2d 626, 626 [2003], lv denied 100 NY2d 598 [2003]).
Peters, P.J., Stein and Spain, JJ., concur. Ordered that the judgment is affirmed.