PEOPLE v. STEWART (1997)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Jesse STEWART, Appellant.

Decided: November 24, 1997

Before BRACKEN, J.P., and PIZZUTO, ALTMAN and KRAUSMAN, JJ.

Andrew E. MacAskill, Hicksville, for appellant. James M. Catterson, Jr., District Attorney, Riverhead (Patricia M. Filiberto, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Rohl, J.), rendered August 25, 1995, convicting him of criminal sale of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the People's contention, the defendant's purported waiver of his right to appeal the enhanced sentence imposed by the court is unenforceable. There is no merit, however, to the defendant's contention that the enhanced sentence was improperly imposed. The defendant was expressly advised and acknowledged prior to the sentence date that he would receive an enhanced sentence if he failed to appear at sentencing. The defendant did not appear on the date set for sentencing. He was returned to court on a warrant and thereupon the court properly imposed the enhanced sentence that was promised (see, People v. Figgins, 87 N.Y.2d 840, 637 N.Y.S.2d 684, 661 N.E.2d 156).

MEMORANDUM BY THE COURT.

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