People v Nesbitt

2015 NY Slip Op 00922 [125 AD3d 1016]

February 5, 2015

Appellate Division, Third Department

As corrected through Wednesday, April 1, 2015

[*1]

The People of the State of New York, Respondent, vTerrance F. Nesbitt, Appellant.

Jay L. Wilber, Public Defender, Binghamton (Michael A. Vargha of counsel), forappellant.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.

Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered May 10, 2013, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a controlled substance in the fifth degree.

In satisfaction of a four-count indictment, defendant pleaded guilty to criminalpossession of a controlled substance in the fifth degree. Under the terms of the pleaagreement, he waived his right to appeal and was to be sentenced as a second felonyoffender to 21/2 years in prison, to be followed by one year of postreleasesupervision. At defendant's request, County Court adjourned the date of sentencing toallow defendant time to attend his son's birthday party. The court, however, admonisheddefendant that he was required to appear in court at 9:30 a.m. on March 5, 2013 forsentencing and that, if he did not, the court could impose a sentence greater than theagreed-upon sentence. Defendant failed to appear in court on the sentencing date at 9:30a.m., but showed up at approximately 1:00 p.m. County Court postponed sentencing toconsider whether the sentence should be enhanced, and the matter was adjourned furtheras a result of defendant's motion to withdraw his plea. County Court denied the motionand ultimately sentenced defendant to three years in prison to be followed by two yearsof postrelease supervision. Defendant now appeals.

Defendant asserts that County Court abused its discretion in imposing the enhancedsentence. We disagree. County Court went out of its way to accommodate defendant'srequest to have sentencing adjourned so that he could attend his son's birthday party andeven gave defendant an extra day so that he would not have to return on the date of theparty. The court [*2]specifically warned him of theconsequences of failing to appear, including the potentially longer sentence he faced, andindicated that bad weather or other such issues were not legitimate excuses. Nevertheless,defendant failed to appear at the required time and, when he finally came to court,claimed to have had transportation problems. Under the circumstances presented here,we cannot conclude that County Court abused its discretion in imposing an enhancedsentence (see People vGoodman, 79 AD3d 1285, 1286 [2010]; People v Baez, 67 AD3d 1204 [2009], lv denied 14NY3d 797 [2010]).

Lahtinen, J.P., Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.