| People v Brown |
| 2018 NY Slip Op 05367 [163 AD3d 1269] |
| July 19, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Sean Brown, Appellant. |
Stephen W. Herrick, Public Defender, Albany (Jessica M. Gorman of counsel), for appellant,and appellant pro se.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered September 11, 2015, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a weapon in the second degree.
In March 2015, and in full satisfaction of numerous pending charges, defendant waivedindictment and agreed to be prosecuted pursuant to a superior court information charging himwith one count of attempted criminal possession of a weapon in the second degree with theunderstanding that he would be sentenced to four years in prison followed by five years ofpostrelease supervision. The plea agreement also required defendant to waive his right to appeal.County Court advised defendant, who was out on bail, that it would honor the negotiatedsentence provided defendant, among other things, "[did] not violate the law" prior to sentencingand "show[ed] up for sentencing in a timely manner"; should defendant fail to comply, CountyCourt warned, he could receive a sentence of up to seven years in prison followed by five yearsof postrelease supervision. Defendant thereafter pleaded guilty to the charged crime, and thematter was adjourned for sentencing.
When the parties returned for sentencing in May 2015, defendant requested anadjournment—ostensibly so that he could be present for the birth of his child inmid-August 2015. Despite opposition from the People, County Court granted defendant's requestand adjourned sentencing until August 19, 2015, at which time defendant failed to appear and abench warrant was issued. Defendant subsequently was located and the parties returned to court,whereupon County Court learned that a sealed indictment had been handed up against defendant;County Court reviewed the indictment, revoked defendant's bail and scheduled an Outleyhearing. The People ultimately asked that County Court impose an enhancedsentence—citing both the new charge against defendant and defendant's failure to appearfor sentencing in August 2015. County Court granted the People's request and sentenceddefendant to seven years in prison followed by five years of postrelease supervision. Defendantnow appeals.
Initially, we reject defendant's claim that his combined oral and written waiver of the right toappeal was invalid. County Court explained that the plea agreement included a waiver of theright to appeal defendant's conviction and sentence (see People v Bateman, 151 AD3d 1482, 1483 [2017], lvdenied 31 NY3d 981 [2018]) and that such waiver was in addition to the trial-related rightsthat defendant would be forfeiting by pleading guilty (see People v Smith, 155 AD3d 1244, 1245 [2017]). Defendant,after conferring with counsel, signed a written waiver in open court (see People v Robinson, 155 AD3d1252, 1252 [2017], lv denied 30 NY3d 1119 [2018]) and, in response to CountyCourt's questioning, confirmed that he understood its terms and agreed to be bound by it (see People v Belile, 137 AD3d1460, 1461 [2016]). We therefore find defendant's combined waiver to be knowing,intelligent and voluntary (see People vRoyal, 161 AD3d 1217, 1218 [2018]; People v Campbell, 155 AD3d 1250, 1251 [2017], lvdenied 30 NY3d 1114 [2018]; People v Smith, 155 AD3d at 1245).
Defendant's further claim—that the imposition of the enhanced sentence deprived himof due process—survives his valid appeal waiver (see People v Turner, 158 AD3d 892, 893 [2018]; People v Love, 137 AD3d 1486,1488 [2016]) and, to our analysis, has been adequately preserved for our review (compare People v Benn, 159 AD3d1272, 1273 [2018]; People vGiammichele, 144 AD3d 1320, 1320-1321 [2016], lv denied 28 NY3d 1184[2017]). That said, we cannot say that County Court abused its discretion in imposing theenhanced sentence. As noted previously, the negotiated sentence was conditioned upon, amongother things, defendant appearing in a timely fashion for sentencing. The record reflects thatdefendant was afforded an opportunity to dispute the alleged plea agreement violations, and hisundisputed failure to appear for sentencing, standing alone, provided a valid basis upon which toimpose the enhanced sentence (see e.g.People v Smith, 160 AD3d 664, 665 [2018]; People v Nesbitt, 125 AD3d 1016, 1017 [2015]). Finally, given thatCounty Court advised defendant of the consequences of violating the plea conditions,"defendant's claim that the enhanced sentence [imposed] is harsh and excessive is precluded byhis [valid] appeal waiver" (People vAdams, 153 AD3d 1449, 1451 [2017]; see People v Turner, 158 AD3d at892-893).
Defendant's pro se claims do not warrant extended discussion. Although defendant'sassertion that the superior court information was jurisdictionally defective survives his guilty pleaand appeal waiver (see People v Benn, 159 AD3d at 1272), "[a] charging instrument thatincorporates by reference the statutory provisions applicable to the crime charged has been heldto allege the material elements of the crime sufficiently to survive a jurisdictional challenge" (People v Suits, 158 AD3d 949,951 [2018]; see People v Benn, 159 AD3d at 1272). As the superior court information atissue here incorporated the relevant statutory references, defendant's argument must fail. To theextent that defendant's pro se brief may be read as challenging the factual sufficiency of his plea,this claim is precluded by the valid appeal waiver and, further, is unpreserved for our reviewabsent record evidence of an appropriate postallocution motion (see People v Rodriguez, 154 AD3d1013, 1014 [2017]; People vDejesus, 146 AD3d 1077, 1078 [2017]). Defendant's remaining arguments, to the extentnot specifically addressed, have been examined and found to be lacking in merit.
Devine, J.P., Clark, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.