People v Beardsley

2018 NY Slip Op 01678 [159 AD3d 1194]

March 15, 2018

Appellate Division, Third Department

As corrected through Wednesday, May 2, 2018

[*1]

The People of the State of New York, Respondent, v Jamie R.Beardsley, Appellant.

Rufus Earl Burgess V, Ithaca, for appellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen Ferri of counsel), forrespondent.

Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), renderedMarch 3, 2016, convicting defendant upon his plea of guilty of the crime of burglary in the thirddegree.

Defendant waived indictment and agreed to plead guilty to one count of burglary in the thirddegree as charged in a superior court information with the understanding that he would besentenced as a second felony offender to a prison term of 21/2 to 5years—said sentence to be served as part of the Willard Drug Treatment Program, ifdefendant were to be deemed eligible. Defendant was cautioned that if he was charged with anycriminal conduct pending sentencing, County Court could impose an enhanced sentence of31/2 to 7 years. Defendant thereafter pleaded guilty in accordance with the terms ofthe plea agreement, and the matter was adjourned for sentencing. When defendant appeared forsentencing, he requested a brief furlough. Although reluctant to grant defendant's request, CountyCourt nonetheless did so, but not before warning defendant in no uncertain terms that he wouldbe drug tested upon his return to court; the court then repeatedly advised defendant that if hetested positive for any substance or if he failed to appear for sentencing for any reason, it wouldsentence him to 31/2 to 7 years in prison. Defendant assured County Court that heunderstood what was at stake, and the matter was adjourned. Defendant failed to appear on thescheduled date, and a warrant for his arrest thereafter was issued; when defendant ultimately wasreturned to court, he acknowledged that he failed to appear as required because he had smokedsome marihuana and knew that his "urine was dirty." As promised, County Court imposed anenhanced prison sentence of 31/2 to 7 years, prompting this appeal.

[*2] We affirm. Initially, although not addressed by the parties,the record fails to reflect that defendant either objected to the enhanced sentence imposed ormoved to withdraw his plea upon that ground (see People v Rushlow, 137 AD3d 1482, 1483 [2016]).Accordingly, his challenge to the severity of the enhanced sentence has not been preserved forour review (see People v Garrow,147 AD3d 1160, 1161-1162 [2017]; People v Wachtel, 117 AD3d 1203, 1203 [2014], lv denied23 NY3d 1044 [2014]). Were we to address this issue, we would find that the imposition of theenhanced sentence was entirely justified, as defendant clearly was apprised of the consequencesof, among other things, failing to appear at the appointed date and time (cf. People vGarrow, 147 AD3d at 1162). Stated another way, having failed to heed County Court'sexplicit warnings and having acknowledged that his failure to appear for sentencing as scheduledwould result in the imposition of the very sentence that he ultimately received, defendant cannotnow be heard to complain.

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