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

151
KA 11-02375
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID C. RODMAN, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO, FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered July 7, 2011. The judgment convicted
defendant, upon his plea of guilty, of grand larceny in the fourth
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of grand larceny in the fourth degree (Penal
Law § 155.30 [1]). We reject defendant’s contention that County Court
erred in sentencing him in absentia. Although a defendant has the
right to be present at every material stage of trial (see People v
Ciaccio, 47 NY2d 431, 436), including sentencing (see CPL 380.40 [1]),
that right may be waived (see People v Parker, 57 NY2d 136, 139). “If
a defendant fails to appear at sentencing, he or she may be deemed to
have waived the right to be present only if the defendant was
previously advised of the consequences of failing to appear at
sentencing” (People v Syrell, 42 AD3d 947, 947-948; see People v
Major, 68 AD3d 1244, 1245, lv denied 14 NY3d 772). “Even when . . .
there has been a valid waiver, however, the sentencing court must,
inter alia, inquire into the possibility of locating defendant within
a reasonable period of time before it may exercise its discretion to
sentence defendant in absentia” (Syrell, 42 AD3d at 948; see Parker,
57 NY2d at 142; Major, 68 AD3d at 1245).

     Defendant does not dispute that he was informed of the
consequences of his failure to appear at sentencing. Rather,
defendant contends only that the court erred in imposing a sentence
without first inquiring into the circumstances of his failure to
appear (see generally Parker, 57 NY2d at 142). We reject that
contention. After defendant pleaded guilty, the court adjourned the
matter on several occasions based on defendant’s failure to appear.
Additionally, before imposing the sentence, the court inquired into
                                 -2-                           151
                                                         KA 11-02375

defense counsel’s efforts to locate defendant. Under the
circumstances presented here, we cannot conclude that the Court abused
its discretion by sentencing defendant in absentia (see People v
Torra, 8 AD3d 751, 751-752; People v Howington, 216 AD2d 960, 960, lv
denied 86 NY2d 781).

     Contrary to defendant’s further contention, the record supports a
determination that he wilfully failed to pay restitution prior to the
sentencing date, and thus the court did not err in imposing an
enhanced sentence based on that failure (see generally People v
Hassman, 70 AD3d 716, 717-718). It is undisputed that defendant
failed to comply with the conditions of the sentencing commitment, and
the court specifically informed defendant at the time of the plea
that, if he failed to appear at sentencing, he could be sentenced to
an indeterminate term of 1a to 4 years’ incarceration (see People v
Haran, 72 AD3d 1289, 1289-1290). Moreover, on numerous occasions
after he entered the plea, defendant requested additional time in
which to make restitution payments in whole or in part and represented
to the court that he had the means to do so, and the court granted
defendant’s requests. As a result, there was sufficient information
for the court to determine that, “ ‘in the first instance, the
defendant agreed to pay the restitution in order to obtain the
benefits of a favorable plea, but knew at the time that he . . . would
very likely be unable to satisfy the obligation’ ” (People v Murphy,
71 AD3d 1466, 1467, lv denied 15 NY3d 754; see Hassman, 70 AD3d at
718; see generally People v Bassoff, 51 AD3d 682, 683, lv denied 11
NY3d 734; People v Almo, 300 AD2d 503, 504, lv denied 99 NY2d 611,
612). Finally, defendant’s valid waiver of the right to appeal with
respect to both the conviction and sentence encompasses his contention
that the sentence imposed is unduly harsh and severe (see People v
Lopez, 6 NY3d 248, 255-256; People v Hidalgo, 91 NY2d 733, 737; cf.
People v Maracle, 19 NY3d 925, 928).




Entered:   March 15, 2013                      Frances E. Cafarell
                                               Clerk of the Court
