PEOPLE v. SMITH (2018)

DECISION & ORDER

Appeals by the defendant from two judgments of the County Court, Orange County (Nicholas DeRosa, J.), both rendered September 9, 2016, each convicting him of criminal sale of a controlled substance in the third degree, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are affirmed.

The defendant was charged in two separate indictments with criminal sale of a controlled substance in the third degree.  On July 15, 2016, he pleaded guilty to those charges, in exchange for a promised sentence of concurrent determinate terms of imprisonment of four years plus two years of postrelease supervision, and purportedly waived his right to appeal.  A condition of the plea was that he come “back here for sentencing on the date I just gave you”—August 31, 2016.  The defendant did not appear in court until September 9, 2016, when the court imposed an enhanced sentence of two concurrent determinate terms of imprisonment of six years plus three years of postrelease supervision.  On appeal, the defendant claims his enhanced sentence was illegally imposed and was excessive.

The defendant's purported waiver of his right to appeal was invalid (see People v. Rivers, 141 A.D.3d 551, 33 N.Y.S.3d 908; People v. Lazier, 122 A.D.3d 770, 994 N.Y.S.2d 864).  In any event, a waiver of the right to appeal does not affect the reviewability of the issue of whether there was a sufficient basis to impose an enhanced sentence (see People v. Gregory, 140 A.D.3d 1088, 1089, 33 N.Y.S.3d 736; People v. Muhammad, 47 A.D.3d 951, 952, 851 N.Y.S.2d 601).  However, 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. Diaz, 146 A.D.3d 803, 46 N.Y.S.3d 627).

Here, on August 31, 2016, the defendant went to the emergency room with stomach pains and was treated and released.  He was directed to return to court on September 2, 2016, and failed to do so.  On September 8, 2016, he was late to court because of transportation problems.  The defendant finally appeared for sentencing on September 9, 2016.  Under the circumstances, imposition of an enhanced sentence was a provident exercise of discretion (see People v. Nesbitt, 125 A.D.3d 1016, 1 N.Y.S.3d 580).

Since the defendant's waiver of his right to appeal was invalid, this Court may review the question of whether the enhanced sentence was excessive (see People v. Arrington, 94 A.D.3d 903, 941 N.Y.S.2d 877).  Under the circumstances, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contention is without merit.

LEVENTHAL, J.P., HINDS–RADIX, LASALLE and BRATHWAITE NELSON, JJ., concur.