PEOPLE v. PERHAM

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

The PEOPLE of the State of New York, Appellant, v. Patrick PERHAM, Respondent.

Decided: July 22, 1999

Before:  CARDONA, P.J., MIKOLL, CREW III, YESAWICH JR. and SPAIN, JJ. Marcel J. Lajoy, Schenectady, for appellant. Robert M. Carney, District Attorney (Alfred D. Chapleau of counsel), Schenectady, for respondent.

Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered December 18, 1997, convicting defendant upon his plea of guilty of the crime of driving while intoxicated.

Defendant pleaded guilty to driving while intoxicated as a felony and, as part of the plea bargain, he was to receive, inter alia, a sentence of six months in jail and five years' probation.   Defendant executed a waiver of the right to appeal and, because he was to be released on his own recognizance prior to sentencing, he also executed a form acknowledging that he had read and understood the Parker warnings (see, People v. Parker, 57 N.Y.2d 136, 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313).   When defendant failed to appear for sentencing, County Court sentenced him in absentia to an indeterminate term of imprisonment of 11/313 to 4 years.   Defendant ultimately appeared and moved to be resentenced in accordance with the plea agreement.   He offered no excuse for his failure to appear for sentencing, claiming instead that he was not adequately warned about the consequences of his failure to appear.   County Court denied defendant's application and he now appeals from the judgment.

Defendant's argument that County Court abused its discretion in imposing a sentence greater than that agreed upon as part of the plea bargain falls squarely within the scope of his waiver of the right to appeal (see, People v. Hidalgo, 91 N.Y.2d 733, 675 N.Y.S.2d 327, 698 N.E.2d 46), which he failed to challenge by moving to vacate the plea or judgment.   In any event, there is no merit to the argument.   The record establishes that during the plea proceeding, defense counsel was directed to review the Parker admonishment form with defendant;  defendant thereafter acknowledged that he understood the warnings and agreed to be bound by the terms of the form, which expressly warned defendant that despite an agreed-upon sentence, his failure to appear for sentencing without a valid reason would allow the court to impose any lawful sentence it deemed appropriate.   Defendant and counsel signed the Parker admonishment form, which was clear and unambiguous.   Defendant's subsequent breach of the unequivocal appearance requirement without any exculpatory reason relieved County Court of its obligation to impose the agreed-upon sentence and permitted the imposition of an enhanced sentence (see, People v. Outley, 80 N.Y.2d 702, 594 N.Y.S.2d 683, 610 N.E.2d 356;  People v. Bowden, 221 A.D.2d 723, 634 N.Y.S.2d 220, lv. denied 87 N.Y.2d 919, 641 N.Y.S.2d 601, 664 N.E.2d 512).   Considering defendant's criminal history, which includes a prior felony conviction and violation of probation, we see no abuse of discretion in the sentence imposed.

ORDERED that the judgment is affirmed.

CREW III, J.

CARDONA, P.J., MIKOLL, YESAWICH JR. and SPAIN, JJ., concur.

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