THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. RUSSELL MALCOMB DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence of imprisonment to a determinate term of three years, and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon a plea of guilty, of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [12]). Defendant first contends that County Court (O'Geen, J.) erred in imposing an enhanced sentence because the evidence adduced at the hearing conducted pursuant to People v Outley (80 NY2d 702 [1993]) failed to demonstrate that he violated the plea conditions. Although defendant's contention that the court erred in imposing an enhanced sentence based upon his postplea conduct would survive even a valid waiver of the right to appeal (see People v Forest, 148 AD3d 1585, 1586 [4th Dept 2017], lv denied 29 NY3d 1091 [2017]; People v Lighthall, 6 AD3d 1170, 1171 [4th Dept 2004], lv denied 3 NY3d 643 [2004]), we conclude that defendant's contention lacks merit. The testimony of the deputy chief clerk of the court at the Outley hearing regarding the notification system and the text message that provided defendant with the date of the scheduled sentencing proceeding, which was sent to the phone number that defendant had selected, coupled with defendant's admissions during his testimony and in recorded phone calls from jail suggesting that he had purposefully absconded, supported the court's determination that defendant “ ‘had the opportunity to be present [in court] but failed to avail himself of the opportunity by his own volition,’ ” thereby violating a condition of the plea agreement (People v Royal, 227 AD3d 1375, 1376 [4th Dept 2024], lv denied 42 NY3d 929 [2024], quoting People v Epps, 37 NY2d 343, 350 [1975], cert denied 423 US 999 [1975]). Moreover, defendant was “given an opportunity to testify to his exculpatory explanation” for his failure to appear at sentencing (People v Reynolds, 27 NY3d 1099, 1102 [2016]), and the fact “[t]hat the court chose not to credit defendant's account of events is not a ground for reversal” (People v Albergotti, 17 NY3d 748, 750 [2011]; see Forest, 148 AD3d at 1586). Inasmuch as defendant's “failure to appear in court on the scheduled sentencing date constituted a violation of the plea agreement,” the court properly determined that it “was no longer bound by the plea promise and could properly impose an enhanced sentence” (People v Figgins, 87 NY2d 840, 841 [1995]).

Next, even assuming, arguendo, that the waiver of the right to appeal is valid, we conclude that it does not encompass defendant's challenge to the severity of the enhanced sentence inasmuch as Supreme Court (Cianfrini, A.J.), which had conducted the plea proceeding, “failed to advise defendant prior to his waiver of the potential period of incarceration that could be imposed for an enhanced sentence” (People v Newton [appeal No. 1], 173 AD3d 1680, 1680 [4th Dept 2019], lv denied 36 NY3d 930 [2020] [internal quotation marks omitted]; see People v Baker, 204 AD3d 1471, 1471 [4th Dept 2022], lv denied 38 NY3d 1069 [2022]; People v Watson, 169 AD3d 1526, 1528 [4th Dept 2019], lv denied 33 NY3d 982 [2019]). We further conclude that, even accounting for defendant's postplea conduct, the enhanced sentence is unduly harsh and severe in light of the nature of the crime, defendant's age, and his minimal criminal history (see generally People v Fenton, 182 AD3d 1048, 1049 [4th Dept 2020]). We therefore modify the judgment as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]) by reducing the enhanced sentence of imprisonment to a determinate term of three years.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court