                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 17, 2016                   107211
________________________________

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

MARCUS E. MITCHELL,
                    Appellant.
________________________________


Calendar Date:   October 13, 2016

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

                             __________


     Michael C. Ross, Bloomingburg, for appellant.

      Paul Czajka, District Attorney, Hudson (Trevor O. Flike of
counsel), for respondent.

                             __________


Egan Jr., J.

      Appeal from a judgment of the County Court of Columbia
County (Koweek, J.), rendered June 19, 2013, convicting defendant
upon his plea of guilty of the crimes of criminal mischief in the
second degree, resisting arrest and unlawfully fleeing a police
officer in a motor vehicle in the third degree.

      In May 2013, defendant pleaded guilty to criminal mischief
in the second degree, resisting arrest and unlawfully fleeing a
police officer in a motor vehicle in the third degree as charged
in an indictment. The plea was entered pursuant to a 10-page
written agreement signed by defendant in November 2012, and
reaffirmed during the plea allocution, in which the People agreed
to recommend that defendant receive a sentence of 2 to 4 years in
                               -2-                107211

prison, with court-ordered Willard treatment.1 The agreement,
which included a waiver of appeal, also satisfied other pending
charges. As provided in the agreement and reiterated during the
plea allocution, County Court made no sentencing promise and
advised defendant that it could impose a prison sentence of up to
3½ to 7 years. Defendant failed to appear for sentencing and was
sentenced in absentia, as a previously admitted second felony
offender, to an aggregate prison term of 3½ to 7 years and
ordered to pay restitution. Defendant now appeals.

      We affirm. Initially, we agree with defendant that his
waiver of appeal was not knowing, voluntary and intelligent, as
neither County Court nor the written plea agreement adequately
informed him that his appeal rights were separate and distinct
from those trial-related rights automatically forfeited by his
guilty plea (see People v Lopez, 6 NY3d 248, 256 [2006]; People v
Larock, 139 AD3d 1241, 1242 [2016], lv denied 28 NY3d 932
[2016]). In any event, the written agreement expressly reserved
defendant's right to appeal the sentence if the court imposed a
sentence harsher than the negotiated sentence, which is the case
here.

      Defendant further contends that County Court abused its
discretion in imposing what he characterizes as an "enhanced"
sentence due to his failure to appear at sentencing. We are
unpersuaded, as the record reflects that the court advised
defendant, at the time of the plea, that while the People would
recommend a sentence of 2 to 4 years, the court was not making a
sentencing commitment and could impose the maximum prison
sentence of 3½ to 7 years, and warned him that it could sentence
him in his absence if he failed to appear. The written
agreement, which defendant confirmed he had reviewed with his
attorney, also advised him that he could be sentenced in
absentia. Thus, the sentence was not "enhanced" as the court
retained the discretion to impose the maximum sentence (compare


      1
         The written agreement was signed earlier pursuant to the
People's promise to recommend a lesser sentence, which was
renegotiated after it was disclosed that defendant had felony
convictions in Florida.
                              -3-                  107211

People v Denegar, 130 AD3d 1140, 1141 [2015]); by failing to
appear despite warnings about the failure to appear, defendant
forfeited his right to be present at sentencing (see People v
Corley, 67 NY2d 105, 109-110 [1986]; People v Klein, 124 AD3d
1143, 1143 [2015]). Further, County Court took into
consideration the People's representation that, after the plea,
defendant had been arrested for a new crime and that local police
had been "actively looking" for him in the five weeks since, but
were unable to locate him. Defense counsel did not dispute these
facts. Under these circumstances, we do not find that the court
abused its discretion in sentencing defendant in absentia.

      Finally, given that the charges stem from defendant's
intentional destruction of a police car, as well as his criminal
history and the fact that this plea also satisfied other pending
charges, we cannot conclude that the sentence imposed was harsh
or excessive (see generally People v Launder, 132 AD3d 1151,
1154-1155 [2015], lv denied 27 NY3d 1153 [2016]). Defendant's
remaining claims have been reviewed and determined to lack merit.

     Garry, J.P., Rose, Devine and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
