PEOPLE v. PEREYRA (2019)

DECISION & ORDER

ORDERED that the sentence is affirmed.

The defendant's purported waiver of his right to appeal was invalid due to the Supreme Court's limited colloquy, which did not ensure that the defendant understood the consequences of the waiver (see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645;  People v. Brown, 122 A.D.3d 133, 137, 992 N.Y.S.2d 297;  People v. Johnson, 109 A.D.3d 1004, 971 N.Y.S.2d 469).  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. Smith, 160 A.D.3d 664, 665, 73 N.Y.S.3d 600;  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).

The Supreme Court's imposition of the enhanced sentence was a provident exercise of discretion.  The court clearly warned the defendant on October 13, 2016, the original sentencing date, that it would grant his request to be released from custody and to adjourn sentencing to allow him to attend to personal matters, on the condition that he would not be re-arrested, and that he appear for sentencing on October 19, 2016.  The court also told the defendant that he should appear on October 19, 2016, prepared to be sentenced.  The court further warned the defendant that if he did not comply with these conditions, he would be sentenced to a term of imprisonment of 21/313 to 7 years.  On October 19, 2016, the defendant failed to timely appear for his sentencing.  The defendant arrived to court in the afternoon, and was observed by the court to be in an intoxicated condition.  Thus, due to the defendant's condition, he was not prepared to be sentenced, which necessitated a further adjournment.

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. Grant, 122 A.D.3d 767, 996 N.Y.S.2d 147).  Under the particular circumstances of this case, the Supreme Court providently exercised its discretion in enhancing the defendant's sentence on his conviction of operating a motor vehicle while under the influence of alcohol or drugs from, inter alia, the promise of 11/313 to 4 years imprisonment, to 11/212 to 41/212 years imprisonment (see People v. Grant, 122 A.D.3d at 767, 996 N.Y.S.2d 147;  People v. Marte, 85 A.D.3d 945, 946, 925 N.Y.S.2d 348).

MASTRO, J.P., MILLER, DUFFY and LASALLE, JJ., concur.