People v Pereyra

2019 NY Slip Op 00907 [169 AD3d 719]

February 6, 2019

Appellate Division, Second Department

As corrected through Wednesday, March 27, 2019

[*1]

The People of the State of New York, Respondent, v JosePereyra, Appellant.

Joseph F. DeFelice, Kew Gardens, NY, for appellant.

Madeline Singas, District Attorney, Mineola, NY (Daniel Bresnahan and Laurie K. Gibbons ofcounsel), for respondent.

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, NassauCounty (Patricia Harrington, J.), imposed November 2, 2016, upon his plea of guilty, on the groundthat the sentence imposed was excessive.

Ordered that the sentence is affirmed.

The defendant's purported waiver of his right to appeal was invalid due to the Supreme Court'slimited colloquy, which did not ensure that the defendant understood the consequences of the waiver(see People v Bradshaw, 18 NY3d257, 267 [2011]; People v Brown,122 AD3d 133, 137 [2014]; People vJohnson, 109 AD3d 1004 [2013]). In any event, a waiver of the right to appeal does notaffect the reviewability of the issue of whether there was a sufficient basis to impose an enhancedsentence (see People v Smith, 160 AD3d664, 665 [2018]; People v Gregory,140 AD3d 1088, 1089 [2016]; People vMuhammad, 47 AD3d 951, 952 [2008]).

The Supreme Court's imposition of the enhanced sentence was a provident exercise of discretion.The court clearly warned the defendant on October 13, 2016, the original sentencing date, that it wouldgrant his request to be released from custody and to adjourn sentencing to allow him to attend topersonal matters, on the condition that he would not be re-arrested, and that he appear for sentencingon October 19, 2016. The court also told the defendant that he should appear on October 19, 2016,prepared to be sentenced. The court further warned the defendant that if he did not comply with theseconditions, he would be sentenced to a term of imprisonment of 21/3 to 7 years. OnOctober 19, 2016, the defendant failed to timely appear for his sentencing. The defendant arrived tocourt in the afternoon, and was observed by the court to be in an intoxicated condition. Thus, due to thedefendant's condition, he was not prepared to be sentenced, which necessitated a furtheradjournment.

Failure to appear on a scheduled sentencing date in violation of a plea agreement may constitute abasis to impose an enhanced sentence (see People v Figgins, 87 NY2d 840 [1995]; People v Grant, 122 AD3d 767[2014]). Under the particular circumstances of this case, the Supreme Court providently exercised itsdiscretion in enhancing the defendant's sentence on his conviction of operating a motor vehicle whileunder the influence of alcohol or drugs from, inter alia, the promise of 11/3 to 4 years'imprisonment, to 11/2 to 41/2 years' imprisonment (see People vGrant, 122 AD3d at 767; People vMarte, 85 AD3d 945, 946 [2011]). Mastro, J.P., Miller, Duffy and LaSalle, JJ., concur.