PEOPLE v. BERGER (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Nassau County, (Teresa K. Corrigan, J.), rendered July 8, 2024, convicting him of attempted criminal possession of stolen property in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

In September 2023, the defendant pleaded guilty to attempted criminal possession of stolen property in the second degree (Penal Law §§ 110.00, 165.52) in exchange for a promised sentence.  As a condition of the plea, the County Court required the defendant to appear on the date of his sentencing.  Based on the defendant's failure to appear for sentencing in December 2023, the court determined that the defendant had violated the terms of his plea agreement and imposed an enhanced sentence.  The defendant appeals.

Contrary to the People's contention, the defendant preserved his challenge to the imposition of the enhanced sentence, since defense counsel “ ‘made his position with respect to the ruling ․ known to the court’ ” (People v. Martinez, 202 A.D.3d 828, 832, 162 N.Y.S.3d 151, quoting CPL 470.05[2] ).

“ ‘Conditions imposed as part of a plea arrangement are valid if the parties agree to them and they do not violate any statute or contravene public policy’ ” (People v. Volpe, 226 A.D.3d 708, 709, 208 N.Y.S.3d 296, quoting People v. Takie, 172 A.D.3d 1249, 1250, 101 N.Y.S.3d 141).  “Furthermore, ‘[i]t is well established that the violation of an explicit and objective plea condition that was accepted by the defendant can result in the imposition of an enhanced sentence’ ” (People v. Martinez, 202 A.D.3d at 832, 162 N.Y.S.3d 151, quoting People v. Becker, 80 A.D.3d 795, 796, 914 N.Y.S.2d 383).  “[F]ailure to appear on a scheduled sentencing date in violation of a plea agreement may constitute a basis to impose an enhanced sentence” (People v. Smith, 160 A.D.3d 664, 665, 73 N.Y.S.3d 600).  However, “[d]ue process requires that before imposing an enhanced sentence, the court conduct an inquiry sufficient for it to determine that the defendant indeed violated the plea condition” (People v. Murdock, 175 A.D.3d 1560, 1561, 109 N.Y.S.3d 358).

Contrary to the defendant's contention, the County Court's inquiry was sufficient to determine that the defendant had violated a condition of his plea agreement by failing to appear for sentencing (see People v. Martinez, 235 A.D.3d 901, 902, 228 N.Y.S.3d 280).

Accordingly, the County Court providently exercised its discretion in imposing the enhanced sentence (see People v. Hicks, 98 N.Y.2d 185, 189, 746 N.Y.S.2d 441, 774 N.E.2d 205).

BRATHWAITE NELSON, J.P., CHRISTOPHER, VENTURA and GOLIA, JJ., concur.