PEOPLE v. BOBO (2007)

Appeal by the defendant, as limited by his brief, from a sentence of the County Court, Nassau County (Gulotta, J.), rendered October 19, 2005, sentencing him, as a second-felony offender, to an indeterminate term of imprisonment of 3 1/212 to 7 years upon his conviction of criminal possession of a controlled substance in the fifth degree, to run concurrently with a determinate term of imprisonment of one year upon his conviction of criminal possession of a controlled substance in the seventh degree, upon his plea of guilty.

ORDERED that the sentence is affirmed.

In exchange for his plea of guilty, the defendant was promised a sentence of an indeterminate term of imprisonment of 3 to 6 years for criminal possession of a controlled substance in the fifth degree and was further advised that if he failed to appear for sentencing he could be sentenced “to anything up to the maximum of three and a half to seven years.”

The defendant failed to appear for sentencing and was returned on a bench warrant.   When he was brought before the court he claimed that he failed to appear on the original sentencing date because “I had a problem with my parole officer ․ I don't know.   I just panicked, I guess.”   This did not constitute a reasonable justification for failing to appear for sentencing (see People v. Outley, 80 N.Y.2d 702, 594 N.Y.S.2d 683, 610 N.E.2d 356, affd. 84 F.3d 100, cert. denied 519 U.S. 964, 117 S.Ct. 386, 136 L.Ed.2d 303).   Accordingly, the court properly imposed an enhanced sentence of an indeterminate term of 3 1/212 to 7 years imprisonment to run concurrently with a determinate term of imprisonment of one year (see People v. Gianfrate, 192 A.D.2d 970, 973, 596 N.Y.S.2d 933;  People v. Francis, 11 Misc.3d 142(A), 2006 WL 1131790).

The defendant's claim that the court should have conducted an additional inquiry as to why the defendant failed to appear on the original sentencing date is unpreserved for appellate review (see People v. Miles, 268 A.D.2d 489, 490, 703 N.Y.S.2d 491).