People v Smith

2018 NY Slip Op 04790 [162 AD3d 1408]

June 28, 2018

Appellate Division, Third Department

As corrected through Wednesday, August 1, 2018

[*1]

The People of the State of New York,Respondent, v Clarence D. Smith, Appellant.

Michael P. Graven, Owego, 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.), renderedJuly 28, 2016, convicting defendant upon his plea of guilty of the crime of aggravated unlicensedoperation of a motor vehicle in the first degree.

In July 2015, defendant pleaded guilty as charged in an indictment to aggravated unlicensedoperation of a motor vehicle (hereinafter AUO) in the first degree, stemming from his conduct inknowingly driving while his license was suspended, having previously had his privilege to drivesuspended on 10 or more separate occasions. At the time of the plea, County Court agreed to caphis sentence at one year in jail but warned him that, if he were charged with further criminalconduct, it would not be bound to the promised sentence and could impose a prison term of up to11/3 to 4 years. That warning was repeated later, when defendant failed to appearfor probation interviews. Over the ensuing months, defendant was again charged by indictmentwith AUO in the first degree and driving while intoxicated and, separately, with promotingprison contraband in the second degree. At an appearance in March 2016, at defense counsel'srequest, the court adjourned the matter to permit defendant to pay off all of his pending fines andresolve the suspensions, promising that, if he complied, the court would impose six months ofweekends in jail to permit him to work. The court warned defendant that, if he failed to pay hisfines or were arrested or charged with new similar crimes, it would not be bound to the originalsentencing promise and could impose a prison term up to 11/3 to 4 years. At theJuly 2016 sentencing, the court placed on the record the history of this matter since defendant'sJuly 2015 guilty plea and the fact that defendant had again been arrested in late March 2016 forAUO in the first degree. The court thereafter sentenced defendant to an enhanced prison term of1 to 3 years, and defendant now appeals.

We affirm. Defendant argues that County Court failed to conduct a sufficient inquiry beforeimposing an enhanced sentence (see People v Outley, 80 NY2d 702, 713 [1993]).However, at sentencing, after the court reviewed the history of this matter since defendant'sguilty plea, which defense counsel conceded, the court advised defendant on the record that itintended to impose an enhanced sentence.^[FN1] Defendant never objected to the enhancedsentence during the sentencing proceeding or requested further inquiry, and did not move towithdraw his guilty plea and, thus, this claim is unpreserved for our review (see People v Lopez, 157 AD3d1163, 1163-1164 [2018]; People vRushlow, 137 AD3d 1482, 1483 [2016]; cf. People v Turner, 158 AD3d 892, 893 [2018]). Were we toreview this issue despite the lack of preservation, we would find that the court clearly adviseddefendant of the conditions that he must abide by or risk enhancement (see People v Lester, 141 AD3d951, 954 [2016], lv denied 28 NY3d 1185 [2017]; cf. People v Rushlow, 137AD3d at 1483-1484; People v Tole,119 AD3d 982, 984 [2014]). Further, the court conducted a sufficient inquiry at severalappearances during which it considered the accusatory instruments and ongoing arguments ofcounsel, all of which established that an enhanced sentence was warranted (see People v Albergotti, 17 NY3d748, 750 [2011]; People vDriscoll, 131 AD3d 766, 767 [2015], lv denied 27 NY3d 996 [2016]).

We are unpersuaded by defendant's further contention that the enhanced sentence is harshand excessive.^[FN2] Therecord reflects that defendant has an extensive history of driving while his license is suspendedand, following his guilty plea, frustrated County Court's repeated efforts to impose theagreed-upon or a lesser sentence. Under these circumstances, we find no abuse of discretion orextraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v Slamp, 145 AD3d1320, 1321 [2016]).

Garry, P.J., McCarthy, Clark, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.

Footnote 1:County Court had raised theissue of enhancing the sentence at several prior proceedings.

Footnote 2:At sentencing, the Peopleindicated that they would move to dismiss the unrelated postplea indictment handed up inJanuary 2016 and other pending charges provided that County Court imposed the enhanced 1- to3-year prison sentence on this guilty plea. Also, although defendant was released to parolesupervision in July 2017, his challenge to the sentence as harsh and excessive is not moot giventhat he is still under parole supervision until his sentence is complete (see People v Pixley, 150 AD3d1555, 1557 [2017], lv denied 30 NY3d 952 [2017]).