PEOPLE v. BEARDSLEY (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered March 3, 2016, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.

Defendant waived indictment and agreed to plead guilty to one count of burglary in the third degree as charged in a superior court information with the understanding that he would be sentenced as a second felony offender to a prison term of 21/212 to 5 years—said sentence to be served as part of the Willard Drug Treatment Program, if defendant were to be deemed eligible.  Defendant was cautioned that if he was charged with any criminal conduct pending sentencing, County Court could impose an enhanced sentence of 31/212 to 7 years.  Defendant thereafter pleaded guilty in accordance with the terms of the plea agreement, and the matter was adjourned for sentencing.  When defendant appeared for sentencing, he requested a brief furlough.  Although reluctant to grant defendant's request, County Court nonetheless did so, but not before warning defendant in no uncertain terms that he would be drug tested upon his return to court;  the court then repeatedly advised defendant that if he tested positive for any substance or if he failed to appear for sentencing for any reason, it would sentence him to 31/212 to 7 years in prison.  Defendant assured County Court that he understood what was at stake, and the matter was adjourned.  Defendant failed to appear on the scheduled date, and a warrant for his arrest thereafter was issued;  when defendant ultimately was returned to court, he acknowledged that he failed to appear as required because he had smoked some marihuana and knew that his “urine was dirty.”  As promised, County Court imposed an enhanced prison sentence of 31/212 to 7 years, prompting this appeal.

We affirm.  Initially, although not addressed by the parties, the record fails to reflect that defendant either objected to the enhanced sentence imposed or moved to withdraw his plea upon that ground (see People v. Rushlow, 137 A.D.3d 1482, 1483, 28 N.Y.S.3d 476 [2016] ).  Accordingly, his challenge to the severity of the enhanced sentence has not been preserved for our review (see People v. Garrow, 147 A.D.3d 1160, 1161–1162, 47 N.Y.S.3d 744 [2017];  People v. Wachtel, 117 A.D.3d 1203, 1203, 984 N.Y.S.2d 699 [2014], lv denied 23 N.Y.3d 1044, 993 N.Y.S.2d 257, 17 N.E.3d 512 [2014] ).  Were we to address this issue, we would find that the imposition of the enhanced sentence was entirely justified, as defendant clearly was apprised of the consequences of, among other things, failing to appear at the appointed date and time (cf. People v. Garrow, 147 A.D.3d at 1162, 47 N.Y.S.3d 744).  Stated another way, having failed to heed County Court's explicit warnings and having acknowledged that his failure to appear for sentencing as scheduled would result in the imposition of the very sentence that he ultimately received, defendant cannot now be heard to complain.

ORDERED that the judgment is affirmed.

Garry, P.J., Lynch, Devine, Aarons and Pritzker, JJ., concur.