PEOPLE v. PINEDA (2024)

Judgment, Supreme Court, New York County (Diane Kiesel, J.), rendered February 22, 2022, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to a term of 31/212 years to be followed by five years of postrelease supervision, unanimously affirmed.

Although defendant's waiver of his right to appeal was valid (People v. Thomas, 34 N.Y.3d 545, 559–560, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]), his claim that the court improvidently imposed an enhanced sentence based on his failure to timely appear for sentencing survives his waiver of the right to appeal (see People v. Cruz, 221 A.D.3d 465, 465, 198 N.Y.S.3d 57 [1st Dept. 2023]).  Nevertheless, the court providently imposed an enhanced sentence.  Defendant failed to appear in court on the scheduled sentencing date after the court had warned him that it would sentence him to seven years if he did not return for sentencing on the scheduled date (see People v. Figgins, 87 N.Y.2d 840, 841, 637 N.Y.S.2d 684, 661 N.E.2d 156 [1995];  People v. Marrero, 246 A.D.2d 402, 402, 666 N.Y.S.2d 426 [1st Dept. 1998], lv denied 91 N.Y.2d 975, 672 N.Y.S.2d 854, 695 N.E.2d 723 [1998]).

Defendant's valid waiver of the right to appeal forecloses review of his excessive sentence claim (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970;  People v. Adames, 227 A.D.3d 483, 208 N.Y.S.3d 609 [1st Dept. 2024], lv denied 42 N.Y.3d 969, 219 N.Y.S.3d 621, 244 N.E.3d 1080 [2024]).  As an alternative holding, we perceive no basis for reducing the sentence.  The court had warned defendant it would sentence him to seven years if he failed to appear on the scheduled sentencing date, but ultimately imposed a sentence of three and one-half years, only six months above the originally promised sentence (see People v. Bridges, 143 A.D.3d 649, 39 N.Y.S.3d 772 [1st Dept. 2016];  Marrero, 246 A.D.2d at 402, 666 N.Y.S.2d 426).