THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ALVIS SPRAGUE DEFENDANT APPELLANT (2011)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  On appeal from a judgment convicting him upon his plea of guilty of grand larceny in the third degree (Penal Law § 155.35[1] ), defendant contends in his pro se supplemental brief that County Court erred in imposing an enhanced sentence without affording him an opportunity to withdraw his plea.   That contention is not preserved for our review because defendant did not object to the enhanced sentence, nor did he move to withdraw the plea or to vacate the judgment of conviction (see People v. Fortner, 23 AD3d 1058;  People v. Sundown, 305 A.D.2d 1075).   In any event, defendant's contention lacks merit.  “When a defendant violates a condition of the plea agreement, the court is no longer bound by the agreement and is free to impose a greater sentence without offering [the] defendant an opportunity to withdraw his [or her] plea” (People v. Santiago, 269 A.D.2d 770, 770;  see People v. Figgins, 87 N.Y.2d 840;  People v. Cato, 226 A.D.2d 1066, lv denied 88 N.Y.2d 877).   The record establishes that defendant was clearly informed of the consequences of his failure to appear at sentencing and the date on which sentencing was scheduled, and he nevertheless failed to appear on that date.   The remaining contentions of defendant in his pro se supplemental brief are without merit.   Contrary to the contention of defendant in his main brief, the sentence is not unduly harsh or severe.

Patricia L. Morgan

Clerk of the Court