        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

414
KA 14-02017
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

FRANK M. THOMAS, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (MARY-JEAN BOWMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK M. THOMAS, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered July 16, 2014. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal possession
of a weapon in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law, the sentence is vacated, and the matter is
remitted to Niagara County Court for further proceedings in accordance
with the following memorandum: In appeal No. 1, defendant appeals
from a judgment convicting him upon his plea of guilty of attempted
criminal possession of a weapon in the second degree (Penal Law
§§ 110.00, 265.03 [3]). In appeal No. 2, he appeals from a judgment
convicting him upon his plea of guilty of attempted burglary in the
third degree (§§ 110.00, 140.20). Initially, we note that defendant
waived his right to appeal, but we conclude that the waiver of the
right to appeal does not encompass his allegation that County Court
improperly enhanced his sentence (see People v Kelly, 126 AD3d 1328,
1328; People v Lighthall, 6 AD3d 1170, 1171, lv denied 3 NY3d 643).
Although defendant failed to preserve his contention for our review by
failing to object to the enhanced sentence, or by moving to withdraw
his plea or to vacate the judgment of conviction (see People v
Fortner, 23 AD3d 1058, 1058; People v Sundown, 305 AD2d 1075, 1076),
we nevertheless exercise our power to review it as a matter of
discretion in the interest of justice (see CPL 470.15 [3] [c]).

     As part of the plea agreement, the court stated that it would
sentence defendant to a determinate term of incarceration of five
years for the attempted criminal possession of a weapon conviction in
                                 -2-                           414
                                                         KA 14-02017

appeal No. 1, and it promised to impose a concurrent, indeterminate
term of incarceration of 2 to 4 years for the attempted burglary in
the third degree conviction in appeal No. 2. The court did not warn
defendant that it could impose an enhanced sentence if he was arrested
on new charges, or if he failed to appear for sentencing. While
awaiting sentencing, defendant was arrested on new charges and failed
to appear for sentencing, and the court imposed the promised sentence
in appeal No. 2, but an enhanced sentence of a seven-year term in
appeal No. 1. Accordingly, we conclude that the court erred in
imposing an enhanced sentence in appeal No. 1 inasmuch as it did not
advise defendant at the time of his plea that “a harsher sentence than
he bargained for could be imposed if [he] failed to appear at
sentencing” (People v Ortiz, 244 AD2d 960, 961; see People v Donald,
132 AD3d 1396, 1397; Sundown, 305 AD2d at 1075-1076), or if he was
arrested on new charges while awaiting sentencing (see generally
People v Outley, 80 NY2d 702, 712-713).

     We therefore modify the judgment in each appeal by vacating the
sentence in each appeal, and we remit the matters to County Court to
impose the promised sentences or to afford defendant the opportunity
to withdraw his pleas (see People v Spencer, 129 AD3d 1458, 1459;
Fortner, 23 AD3d at 1058; see generally People v Ciccarelli, 32 AD3d
1175, 1176). In light of our determination, we do not address
defendant’s remaining contentions.




Entered:   June 10, 2016                        Frances E. Cafarell
                                                Clerk of the Court
