| People v King |
| 2019 NY Slip Op 08729 [178 AD3d 1126] |
| December 5, 2019 |
| Appellate Division, Third Department |
[*1](December 5, 2019)
| The People of the State of New York,Respondent, v Thomas King Jr., Appellant. |
John B. Casey, Cohoes, for appellant.
Mary Pat Donnelly, District Attorney, Troy (Jacob B. Sher of counsel), for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Rensselaer County (Young, J.),rendered December 12, 2016, convicting defendant upon his plea of guilty of the crimes ofaggravated unlicensed operation of a motor vehicle in the first degree and driving whileintoxicated (two counts).
On October 9, 2015, defendant pleaded guilty to aggravated unlicensed operation of a motorvehicle in the first degree and driving while intoxicated (two counts) with the understanding thathe would be sentenced to 90 days in jail and five years of probation. Sentencing was scheduledfor December 7, 2015. On October 23, 2015, after having served the equivalent of his 90-day jailterm, defendant appeared before County Court. Insofar as defendant was being released on hisown recognizance prior to sentencing, County Court administered Parker warningsadvising defendant that if he failed to appear at sentencing or was arrested for any reasonbetween then and the sentencing date, he could be sentenced to 1
On December 12, 2016, defendant appeared before County Court for sentencing. CountyCourt noted that defendant had been arrested in the interim and had failed to appear forsentencing on December 7, 2015. As a result, County Court sentenced defendant to an aggregateprison term of 1 to 3 years. Defendant appeals.
The People concede, and we agree, that since the Parker warnings were not imposedas conditions of the plea agreement on October 9, 2015, County Court could not impose a greatersentence than the one agreed upon as part of the plea agreement on a violation of the warnings(see People v Therrien, 301 AD2d 751, 752 [2003], lv denied 99 NY2d 633[2003]). We have been informed that, while this appeal was pending, defendant was dischargedfrom parole supervision on this conviction. As defendant's sentence is complete, his argumentthat the sentence imposed was harsh and excessive is moot (see People v Parker, 156 AD3d 1059, 1060 [2017]; People vMoore, 247 AD2d 228, 229 [1998], lv denied 91 NY2d 943 [1998]). Defendant alsoargues that he should have been provided an opportunity to withdraw his plea prior to theimposition of the enhanced sentence. In light of County Court's failure to administerParker warnings as part of the plea proceeding, the court had an obligation to eitherimpose the agreed-upon sentence or provide defendant with the opportunity to withdraw his pleabefore imposing an enhanced sentence (see People v Rushlow, 137 AD3d 1482, 1484 [2016]; People v Lewis, 98 AD3d 1186,1186-1187 [2012]). In our view, the fact that defendant has served the imposed sentence duringthe pendency of this appeal does not render moot his claim of a failure to provide him anopportunity to withdraw his plea prior to the imposition of the sentence. Accordingly, we vacatethe sentence and remit the matter to County Court for further proceedings (see People vRushlow, 137 AD3d at 1484; People v Tole, 119 AD3d 982, 984 [2014]).
Clark, J.P., Devine and Pritzker, JJ., concur. Ordered that the judgment is modified, on thelaw, by vacating the sentence imposed; matter remitted to the County Court of Rensselaer Countyfor further proceedings not inconsistent with this Court's decision; and, as so modified,affirmed.