| People v Martin |
| 2017 NY Slip Op 04466 [151 AD3d 753] |
| June 7, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Martin, Appellant. |
Rory K. Brady, Goshen, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, NY (Elizabeth L. Schulz of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County(Rosenwasser, J., at plea; Freehill, J., at sentence), rendered October 27, 2015, convicting him ofoperating a motor vehicle while under the influence of alcohol as a felony, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is affirmed.
In 2003, the defendant entered into a plea agreement and pleaded guilty to one count ofoperating a motor vehicle while under the influence of alcohol as a felony. When he failed toappear on his sentencing date, a bench warrant was issued for his arrest. The defendant wasultimately sentenced in 2015. When he was sentenced, the County Court imposed a sentence thatwas greater than the one it had promised in connection with the plea agreement. On appeal, thedefendant contends that the court erred in imposing a greater sentence than it had originallypromised since the transcript of the plea proceeding is no longer available and the recordtherefore fails to demonstrate that his appearance on the scheduled sentencing date was acondition of the plea agreement.
The defendant's contention that the County Court improperly imposed a greater sentence thanit had promised is not preserved for appellate review, as he neither objected to the sentence onthat ground nor moved to vacate his plea (see People v Carrasquillo, 133 AD3d 774, 774 [2015]; People v Aliano, 116 AD3d 874,875 [2014]; People v Scoca, 38AD3d 801, 801 [2007]; People v Delatorre, 306 AD2d 419, 419 [2003]). Thedefendant's attorney actually conceded at the sentencing proceeding that the defendant violatedthe terms of the plea agreement when he failed to appear on the scheduled sentencing date (cf.People v Figgins, 87 NY2d 840, 841 [1995]; People v Grant, 122 AD3d 767, 767 [2014]; People vDelatorre, 306 AD2d at 419-420). Furthermore, the defendant's failure to raise his currentcontention before the County Court deprived both the People and the court of the opportunity toaddress and remedy the alleged shortcoming in the record (cf. People v Parris, 4 NY3d 41 [2004]). Under the circumstances,we decline to review the defendant's contention in the exercise of our interest of justicejurisdiction (see generally People vChatman, 14 AD3d 620, 620 [2005]; People v Brooks, 217 [*2]AD2d 492, 492 [1995]; People v Prescott, 191 AD2d 521[1993]). Chambers, J.P., Miller, Hinds-Radix and LaSalle, JJ., concur.