People v Klein

2015 NY Slip Op 00660 [124 AD3d 1143]

January 29, 2015

Appellate Division, Third Department

As corrected through Wednesday, March 4, 2015

[*1]

The People of the State of New York,Respondent, v Robert R. Klein III, Appellant.

Abbie Goldbas, Utica, for appellant, and appellant pro se.

Mark D. Suben, District Attorney, Cortland (Kenneth H. Tyler of counsel), forrespondent.

Clark, J. Appeal from a judgment of the County Court of Cortland County(Campbell, J.), rendered November 15, 2012, convicting defendant upon his plea ofguilty of the crime of attempted burglary in the third degree.

In satisfaction of a five-count indictment, defendant pleaded guilty to attemptedburglary in the third degree and waived his right to appeal. Under the terms of the pleaagreement, he was to be sentenced as a second felony offender to 11/2 to 3years in prison. He was advised that, if he did not appear for sentencing and lacked alegitimate excuse for his absence, he could be sentenced in absentia to 2 to 4 years inprison. County Court adjourned sentencing twice. Thereafter, defense counsel made twomore requests for adjournments, the first of which was based on defendant's need toresolve pending legal matters and the second of which was based on him having leftCortland County for work and having no ability to return. County Court denied thoserequests and, when defendant did not appear, sentenced him in absentia to 2 to 4 years inprison. Defendant now appeals.

We affirm. Defendant argues that County Court abused its discretion in sentencinghim in absentia to an enhanced sentence, a claim that survives defendant's appeal waiver(see People v Brown, 101AD3d 1267, 1268 [2012], lv denied 21 NY3d 1014 [2013], cert denied571 US —, 134 S Ct 938 [2014]; People v Hall, 78 AD3d 1328, 1328 [2010]). Turning to themerits, defendant waived his right to be present at sentencing when he failed to appear,despite having been warned of the potential consequences of doing so (see People vBrown, 101 AD3d at 1268; [*2]People v Haran, 72 AD3d1289, 1289-1290 [2010]). County Court then considered the proffered reason fordefendant's absence and found it to be unpersuasive. Under the circumstances of thiscase, we cannot say that County Court abused its discretion by sentencing defendant inabsentia to an enhanced sentence (see People v Brown, 101 AD3d at 1268;People v Haran, 72 AD3d at 1289-1290; People v Torra, 8 AD3d 751, 751-752 [2004]).

McCarthy, J.P., Garry, Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.