| People v Smith |
| 2018 NY Slip Op 02345 [160 AD3d 664] |
| April 4, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Smith, Appellant. |
Kenyon C. Trachte, Newburgh, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, NY (Nicholas D. Mangold of counsel),for respondent.
Appeals by the defendant from two judgments of the County Court, Orange County(Nicholas DeRosa, J.), both rendered September 9, 2016, each convicting him of criminal sale ofa controlled substance in the third degree, upon his pleas of guilty, and imposing sentences.
Ordered that the judgments are affirmed.
The defendant was charged in two separate indictments with criminal sale of a controlledsubstance in the third degree. On July 15, 2016, he pleaded guilty to those charges, in exchangefor a promised sentence of concurrent determinate terms of imprisonment of four years plus twoyears of postrelease supervision, and purportedly waived his right to appeal. A condition of theplea was that he come "back here for sentencing on the date I just gave you"—August 31,2016. The defendant did not appear in court until September 9, 2016, when the court imposed anenhanced sentence of two concurrent determinate terms of imprisonment of six years plus threeyears of postrelease supervision. On appeal, the defendant claims his enhanced sentence wasillegally imposed and was excessive.
The defendant's purported waiver of his right to appeal was invalid (see People v Rivers, 141 AD3d551 [2016]; People v Lazier,122 AD3d 770 [2014]). In any event, a waiver of the right to appeal does not affect thereviewability of the issue of whether there was a sufficient basis to impose an enhanced sentence(see People v Gregory, 140 AD3d1088, 1089 [2016]; People vMuhammad, 47 AD3d 951, 952 [2008]). However, failure to appear on a scheduledsentencing date in violation of a plea agreement may constitute a basis to impose an enhancedsentence (see People v Figgins, 87 NY2d 840 [1995]; People v Diaz, 146 AD3d 803 [2017]).
Here, on August 31, 2016, the defendant went to the emergency room with stomach painsand was treated and released. He was directed to return to court on September 2, 2016, and failedto do so. On September 8, 2016, he was late to court because of transportation problems. Thedefendant finally appeared for sentencing on September 9, 2016. Under the circumstances,imposition of an enhanced sentence was a provident exercise of discretion (see People v Nesbitt, 125 AD3d1016 [2015]).
[*2] Since the defendant's waiverof his right to appeal was invalid, this Court may review the question of whether the enhancedsentence was excessive (see People vArrington, 94 AD3d 903 [2012]). Under the circumstances, the sentence imposed wasnot excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contention is without merit. Leventhal, J.P., Hinds-Radix, LaSalleand Brathwaite Nelson, JJ., concur.