| People v Elmendorf |
| 2016 NY Slip Op 05673 [141 AD3d 1035] |
| July 28, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Justin Elmendorf, Appellant. |
Andrew Kossover, Public Defender, Kingston (Michael K. Gould of counsel), forappellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Garry, J.P. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered June 10, 2014, convicting defendant upon his plea of guilty of the crime ofburglary in the first degree.
Defendant waived indictment and pleaded guilty to burglary in the first degree ascharged in a superior court information, and also waived his right to appeal. Under theterms of the plea agreement, he was to be sentenced as a second felony offender to 12years in prison, to be followed by five years of postrelease supervision. In the course ofthe subsequent sentencing proceeding, as County Court was in the process ofpronouncing sentence in accord with the terms of the plea agreement, defendant becamebelligerent and made disrespectful remarks to the court. The court responded bythreatening defendant with contempt sanctions, and defendant then made threats ofviolence against the court. As a result, the court refused to abide by the plea agreement,gave defendant the option of withdrawing his plea or being sentenced without anypromise as to the sentence that would be imposed, and granted defense counsel's requestfor an adjournment. Upon resumption of the proceedings, the court advised defendant ofthe maximum potential sentence of 25 years and reiterated defendant's options.Thereafter, having consulted with counsel, defendant elected to proceed to sentencing.The court sentenced defendant to 15 years in prison, to be followed by five years ofpostrelease supervision. Defendant appeals.
Defendant's sole contention on appeal is that the sentence imposed was harsh andexcessive. Initially, this claim is not foreclosed by defendant's appeal waiver given thatthe [*2]sentence ultimately imposed differed from thatwhich was contemplated at the time the waiver was executed (see People v Stevens, 41 AD3d1030, 1031 [2007]). On the merits, we find no abuse of discretion or extraordinarycircumstances warranting a modification of the sentence, particularly in light ofdefendant's criminal history and the evidence that he would commit additional crimes inthe future (see People vGirard, 111 AD3d 1153, 1154 [2013], lv denied 23 NY3d 1036[2014]).
To the extent that defendant's argument may be read to suggest that his sentence wasillegal, we disagree. A sentencing court has the inherent authority to reconsider itsintermediate sentencing determination, provided such authority is exercised during thesame court proceeding and prior to the commencement of the sentence (see CPL430.10; People v Chunn, 186 AD2d 262, 262 [1992]; Matter of Cedar,240 App Div 182, 186 [1934], affd sub nom. Matter of Cedar v Judges of Ct. of Gen.Sessions, 265 NY 620 [1934]; see also People v Rauf, 90 AD3d 422, 422 [2011], lvdenied 18 NY3d 927 [2012]; People v Wheeler, 32 AD3d 1107, 1107 [2006]). At thetime of defendant's outburst, the proceedings had not yet terminated nor had the sentencecommenced. It is well established that "[a] sentencing promise made in conjunction witha plea is conditioned upon it[ ] being lawful and appropriate in light of the subsequentpresentence report or information obtained from other reliable sources" (People v Haslow, 20 AD3d680, 681 [2005] [internal quotation marks and citations omitted], lv denied 5NY3d 828 [2005]). Based upon defendant's inability to conduct himself appropriatelybefore County Court, and his stated intention to commit additional serious crimes, it waswell within the court's authority to reconsider its initial approval of the proposedsentence. Notably, the court appropriately offered defendant the opportunity to eitherwithdraw his plea or to be sentenced without the benefit of a sentencing commitment (see People v Wilson, 69 AD3d970, 971 [2010]; People vBrunelle, 47 AD3d 1067, 1067 [2008], lv denied 11 NY3d 786 [2008];People v Benjamin, 181 AD2d 1059, 1059 [1992]).
Egan Jr., Lynch, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.