| People v Blake |
| 2015 NY Slip Op 02310 [126 AD3d 1375] |
| March 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vWilliam D. Blake, Appellant. |
Charles A. Marangola, Moravia, for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Nathan J. Garland of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.),rendered July 30, 2013. The judgment convicted defendant, upon his plea of guilty, ofcriminal sale of a controlled substance in the fourth degree (two counts), criminal sale ofa controlled substance in the fifth degree (two counts), and criminal possession of acontrolled substance in the fifth degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of,inter alia, two counts of criminal sale of a controlled substance in the fourth degree(Penal Law § 220.34 [1]), defendant contends that County Court erred inimposing an enhanced sentence, based on his failure to appear at sentencing, withoutaffording him an opportunity to withdraw his plea. "That contention is not preserved forour review because defendant did not object to the enhanced sentence, nor did he moveto withdraw the plea or to vacate the judgment of conviction" on that ground (People v Sprague, 82 AD3d1649, 1649 [2011], lv denied 17 NY3d 801 [2011]; see People v Mills, 90 AD3d1518, 1518 [2011], lv denied 18 NY3d 960 [2012]; People vPerkins, 291 AD2d 925, 926 [2002], lv denied 98 NY2d 654 [2002]). In anyevent, defendant's contention lacks merit. The record establishes that the court informeddefendant during the plea proceeding that it could impose an enhanced sentence in theevent that he failed to appear at sentencing. "By failing to appear at the scheduledsentencing, defendant violated the terms of the plea agreement and [the c]ourt was nolonger bound by the agreed-upon sentence . . . Notwithstanding defendant'sproffered excuse for his absence, we [conclude] that the court was justified in imposingthe enhanced sentence" (Peoplev Goodman, 79 AD3d 1285, 1286 [2010]; see People v Goldstein, 12 NY3d 295, 301 [2009];Perkins, 291 AD2d at 926). Furthermore, the court was not required to conductfurther inquiry into the reason for defendant's absence from the scheduled sentencingproceeding because, "had there been any plausible . . . reason fordefendant's failure to appear on the . . . scheduled sentencing date[ ], it is tobe expected that defendant would have been prepared at [the rescheduled] sentencingwith some supporting documentation, particularly after a warrant had been issued tosecure his appearance" (Goldstein, 12 NY3d at 301; see People v Winters, 82 AD3d1691, 1691 [2011], lv denied 17 NY3d 810 [2011]).
The sentence is not unduly harsh or severe. Present—Smith, J.P., Carni,Sconiers and Valentino, JJ.