PEOPLE v. BENNETT (2007)

Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered March 6, 2006, which revoked defendant's probation and imposed a sentence of imprisonment.

In September 2003, after being convicted of the crimes of grand larceny in the third degree and criminal possession of a controlled substance in the fifth degree, defendant was sentenced to a period of probation.   He was convicted of a probation violation in June 2004 and probation was continued.   On December 6, 2005, defendant was arraigned on a second violation of probation.   County Court scheduled a hearing and issued a Parker admonishment, specifically warning defendant that if he failed to appear, the court would proceed in his absence.   Defendant executed a written form acknowledging that he understood the Parker admonishment.

At a January 4, 2006 court appearance, defendant admitted to the violation of probation and resentencing was scheduled for February 1, 2006.   Defendant appeared on that date, but County Court adjourned the matter until March 3, 2006 in order to review defendant's underlying convictions.   Before adjourning, the court inquired as to whether Parker warnings had been given, and defendant himself answered that they had been.   On March 3, 2006, despite having actual notice of the date, defendant did not appear for resentencing.   His attorney indicated that she did not know where he was and was unable to contact him.   County Court adjourned the matter until March 6, 2006 so that efforts could be made to locate defendant.   Those efforts proved unsuccessful and, on March 6, 2006, County Court resentenced defendant, in absentia, to two concurrent terms of 2 to 6 years in prison.   He now appeals.

We affirm.   While defendant criticizes County Court's failure to issue a bench warrant and alludes to “several potential ‘valid excuses' ” for his failure to appear, we note that no such excuse is provided in this record.   Defendant's unexplained absence, in the face of the Parker admonishment that he received and unequivocally acknowledged, constitutes a voluntary waiver of his right to be present at his resentencing (see People v. Rosas, 34 A.D.3d 605, 823 N.Y.S.2d 684 [2006] ).   Before imposing sentence upon him, the court inquired into the unsuccessful efforts of both defendant's own counsel and the People to find him.   We find that, under the circumstances, County Court satisfied the dictates of People v. Parker, 57 N.Y.2d 136, 454 N.Y.S.2d 967, 440 N.E.2d 1313 [1982] prior to sentencing defendant in absentia (see People v. Torra, 8 A.D.3d 751, 777 N.Y.S.2d 924 [2004] ).

Finally, the sentence imposed is within the permissible statutory range and we find no abuse of discretion or extraordinary circumstances warranting a reduction thereof (see People v. Walts, 34 A.D.3d 1043, 1044, 824 N.Y.S.2d 479 [2006], lv. denied 8 N.Y.3d 850, 830 N.Y.S.2d 709, 862 N.E.2d 801 [2007];  People v. Deere, 8 A.D.3d 763, 764, 777 N.Y.S.2d 827 [2004], lv. denied 3 N.Y.3d 673, 784 N.Y.S.2d 11, 817 N.E.2d 829 [2004] ).

ORDERED that the judgment is affirmed.