People v Castro

2019 NY Slip Op 01687 [170 AD3d 1286]

March 7, 2019

Appellate Division, Third Department

As corrected through Wednesday, May 1, 2019

[*1]

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

Law Offices of Danielle Neroni Reilly, Albany (Angela Kelley of counsel), forappellant.

J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), forrespondent.

Appeal from a judgment of the County Court of Washington County (McKeighan, J.),rendered March 30, 2018, convicting defendant upon her plea of guilty of the crime of attemptedpromoting prison contraband in the first degree.

Consistent with the terms of a negotiated plea agreement, which included a waiver of theright to appeal, defendant pleaded guilty to attempted promoting prison contraband in the firstdegree with the understanding that she would receive a split sentence of six months in jail andfive years of probation. Prior to adjourning the matter for sentencing, County Court remindeddefendant of the previously executed Parker warning and expressly advised defendantthat, should she fail to appear for sentencing, the court could proceed without her and couldsentence her to a prison term of up to 11/3 to 4 years. Defendant thereafter failed toappear for sentencing despite two adjournments. When efforts to secure defendant's attendancefailed again, despite a delay of several hours to locate her, County Court sentenced her to a prisonterm of 1 to 3 years. This appeal ensued.

We affirm. Defendant's present assertion that County Court abused its discretion insentencing her in absentia to an enhanced sentence survives her unchallenged waiver of the rightto appeal (see People vSassenscheid, 162 AD3d 1108, 1109 [2018]; People v Klein, 124 AD3d 1143, 1143 [2015]; People v Brown, 101 AD3d 1267,1268 [2012], lv denied 21 NY3d 1014 [2013], cert denied 571 US 1143 [2014]),but we find her argument to be unpersuasive. In addition to executing the written Parkerwarning, defendant was informed by County Court of both the consequences of failing to appearfor sentencing and the maximum prison term that could be imposed (see People v Brown,101 AD3d at 1268). Further, prior to imposing the enhanced sentence, County Court inquired ofdefense counsel's efforts to locate defendant and detailed the attempts to contact defendant (see People v Bennett, 42 AD3d813, 814 [2007]; People vTorra, 8 AD3d 751, 751 [2004]). Defendant criticizes County Court for failing to issue abench warrant prior to imposing the enhanced sentence, but we note that defendant still has failedto offer any excuse for her ultimate failure to appear (see People v Bennett, 42 AD3d at814). Under these circumstances, we cannot say that County Court abused its discretion insentencing defendant in absentia and imposing an enhanced sentence (see People v Rodman, 104 AD3d1186, 1187 [2013], lv denied 22 NY3d 1202 [2014]; People v Brown, 101AD3d at 1268-1269; People v Bennett, 42 AD3d at 814).

To the extent that defendant's brief may be read as contesting the voluntariness of her plea,although this argument survives defendant's unchallenged appeal waiver, it is unpreserved for ourreview in the absence of an appropriate postallocution motion, and the narrow exception to thepreservation requirement is inapplicable here (see People v Bonafante, 166 AD3d 1228, 1228 [2018]; People v Henry, 166 AD3d 1213,1214 [2018]). Defendant's remaining arguments, to the extent not specifically addressed, havebeen examined and found to be lacking in merit.

Egan Jr., J.P., Clark, Devine, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.