PEOPLE v. DOWNING (2024)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Rockland County (Kevin F. Russo, J.), rendered April 7, 2023, convicting him of attempted criminal possession of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the County Court improperly imposed a greater sentence than it had promised is not preserved for appellate review, as he neither objected to the sentence on that ground nor moved to vacate his plea (see People v. Martin, 151 A.D.3d 753, 753, 53 N.Y.S.3d 557;  People v. Carrasquillo, 133 A.D.3d 774, 774, 19 N.Y.S.3d 333).  In any event, failure to appear on a scheduled sentencing date in violation of a plea agreement may constitute a basis to impose an enhanced sentence (see People v. Figgins, 87 N.Y.2d 840, 637 N.Y.S.2d 684, 661 N.E.2d 156;  People v. Pereyra, 169 A.D.3d 719, 719, 93 N.Y.S.3d 130;  People v. Diaz, 146 A.D.3d 803, 805, 46 N.Y.S.3d 627).  Under the particular circumstances of this case, the court providently exercised its discretion in enhancing the defendant's sentence (see People v. Outley, 80 N.Y.2d 702, 712, 594 N.Y.S.2d 683, 610 N.E.2d 356).

The enhanced sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

DUFFY, J.P., CHRISTOPHER, GENOVESI and LANDICINO, JJ., concur.