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

257
KA 14-00226
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIAM D. BLAKE, DEFENDANT-APPELLANT.


CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (NATHAN J. GARLAND OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered July 30, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal sale of a controlled
substance in the fourth degree (two counts), criminal sale of a
controlled substance in the fifth degree (two counts), and criminal
possession of a controlled substance in the fifth degree (two counts).

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of, inter alia, two counts of criminal sale of a
controlled substance in the fourth degree (Penal Law § 220.34 [1]),
defendant contends that County Court erred in imposing an enhanced
sentence, based on his failure to appear at sentencing, without
affording him an opportunity to withdraw his plea. “That contention
is not preserved for our review because defendant did not object to
the enhanced sentence, nor did he move to withdraw the plea or to
vacate the judgment of conviction” on that ground (People v Sprague,
82 AD3d 1649, 1649, lv denied 17 NY3d 801; see People v Mills, 90 AD3d
1518, 1518, lv denied 18 NY3d 960; People v Perkins, 291 AD2d 925,
926, lv denied 98 NY2d 654). In any event, defendant’s contention
lacks merit. The record establishes that the court informed defendant
during the plea proceeding that it could impose an enhanced sentence
in the event that he failed to appear at sentencing. “By failing to
appear at the scheduled sentencing, defendant violated the terms of
the plea agreement and [the c]ourt was no longer bound by the
agreed-upon sentence . . . Notwithstanding defendant’s proffered
excuse for his absence, we [conclude] that the court was justified in
imposing the enhanced sentence” (People v Goodman, 79 AD3d 1285, 1286;
see People v Goldstein, 12 NY3d 295, 301; Perkins, 291 AD2d at 926).
Furthermore, the court was not required to conduct further inquiry
into the reason for defendant’s absence from the scheduled sentencing
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                                                            KA 14-00226

proceeding because, “had there been any plausible . . . reason for
defendant’s failure to appear on the . . . scheduled sentencing
date[], it is to be expected that defendant would have been prepared
at [the rescheduled] sentencing with some supporting documentation,
particularly after a warrant had been issued to secure his appearance”
(Goldstein, 12 NY3d at 301; see People v Winters, 82 AD3d 1691, 1691,
lv denied 17 NY3d 810).

     The sentence is not unduly harsh or severe.




Entered:   March 20, 2015                          Frances E. Cafarell
                                                   Clerk of the Court
