                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 9, 2015                       105194
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

MAHLON DENEGAR,
                    Appellant.
________________________________


Calendar Date:    May 28, 2015

Before:   Garry, J.P., Egan Jr., Rose and Lynch, JJ.

                              __________


      Tara Brower Wells, Latham, for appellant, and appellant
pro se.

      Robert M. Carney, District Attorney, Schenectady (Peter H.
Willis of counsel), for respondent.

                              __________


Garry, J.P.

      Appeal from a judgment of the County Court of Schenectady
County (Giardino, J.), rendered June 22, 2012, convicting
defendant upon his plea of guilty of the crimes of vehicular
assault in the first degree and aggravated driving while
intoxicated.

      Defendant was indicted on various charges stemming from a
motor vehicle accident that occurred in November 2010 within
Schenectady County. The accident caused injury to a passenger
who was under 15 years of age, and defendant was operating his
vehicle while impaired by the use of alcohol and marihuana. In
satisfaction of all the resulting charges against him, defendant
pleaded guilty to vehicular assault in the first degree and
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aggravated driving while intoxicated. The plea agreement
included an aggregate prison sentence of 2 to 4 years. After
several adjournments, sentencing was scheduled for May 25, 2012.
The court was unavailable on that date and so adjourned the
matter to June 8, 2012. Defendant failed to appear on that date
and on several dates thereafter. County Court sentenced
defendant, in absentia, to an enhanced sentence of 3½ to 7 years
in prison for his conviction of vehicular assault in the first
degree and a concurrent term of 1½ to 4 years in prison for his
conviction of aggravated driving while intoxicated. Defendant
appeals.

      Defendant contends that County Court erred in imposing an
enhanced sentence due to his failure to appear at sentencing.
Although he failed to preserve this challenge by objection or an
appropriate motion (see People v Botte, 120 AD3d 1488, 1489
[2014], lv denied 24 NY3d 1118 [2015]), we choose to exercise our
interest of justice jurisdiction to take corrective action (see
People v Donnelly, 80 AD3d 797, 798 [2011]).

      "A sentencing court may not impose an enhanced sentence
unless it has informed the defendant of specific conditions that
the defendant must abide by or risk such enhancement, or give the
defendant an opportunity to withdraw his or her plea before the
enhanced sentence is imposed" (People v Tole, 119 AD3d 982, 984
[2014] [citations omitted]; see People v Parker, 57 NY2d 136, 141
[1982]). The People contend that a written admonishment executed
by defendant at his arraignment nearly nine months earlier was
sufficient to apprise defendant of the consequences for failing
to appear at each scheduled proceeding. However, "[w]hile
written statements or affidavits may serve as a helpful
supplement to a colloquy with the court concerning a plea or the
waiver of certain rights, these writings cannot be substituted
for on-the-record discussions between the defendant and the
court" (People v McDermott, 68 AD3d 1453, 1454 [2009]). Here,
although defendant executed a written admonishment at the time of
arraignment, the record reveals that County Court failed to
ensure that, at the time of his plea, "defendant was fully aware
of the adverse consequences that might flow from his" failure to
appear at sentencing (id.; see People v Lewis, 98 AD3d 1186,
1186-1187 [2012]; People v Lindsey, 80 AD3d 1005, 1006 [2011]).
                                -3-              105194

      Notably, the record further reveals that defendant had
appeared at each of the multiple court dates prior to the
proceedings scheduled to occur in June 2012. County Court later
remarked that the first missed date might possibly have been
caused in part by an adjournment based upon rescheduling.
Apparently defendant's counsel did not provide any written notice
of any of the scheduled court dates; although counsel was not
required to do so, this failure may have contributed to
defendant's alleged confusion or his lack of timely knowledge of
the appearance dates.1 As defendant argues, it does not appear
that he either fled or absconded; when a warrant was ultimately
issued, he was readily found at his residence. Finally, the
record reveals that he has a limited criminal history.
Considering the foregoing, together with the failure to provide
an adequate Parker warning, we find that remittal is necessary so
that the court may impose the agreed-upon sentence or permit
defendant an opportunity to withdraw his plea (see People v Tole,
119 AD3d at 984; People v McDermott, 68 AD3d at 1454; People v
Armstead, 52 AD3d 966, 968 [2008]).

        Egan Jr., Rose and Lynch, JJ., concur.




    1
        Defendant also submitted phone records with his pro se
brief, arguing that these demonstrate that his counsel failed to
contact him and advise him of scheduled court dates. However, as
these documents are not part of the record, they were not
considered upon the appeal (see People v Harden, 6 AD3d 181, 182
[2004], lv denied 3 NY3d 641 [2004]).
                              -4-                  105194

      ORDERED that the judgment is modified, as a matter of
discretion in the interest of justice, by vacating the sentence
imposed; matter remitted to the County Court of Schenectady
County for further proceedings not inconsistent with this Court's
decision; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
