Opinion
307 KA 18-02404
03-19-2021
The PEOPLE of the State of New York, Respondent, v. Roderick G. HENRY, II, Defendant-Appellant.
M. BENJAMIN SUSMAN, AUBURN, FOR DEFENDANT-APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
M. BENJAMIN SUSMAN, AUBURN, FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
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 failure to report a change of address as a sex offender ( Correction Law § 168–f [4] ), defendant contends that County Court erred in imposing an enhanced sentence without affording him the opportunity to withdraw his plea. Defendant failed to preserve his contention for our review inasmuch as he "did not object to the enhanced sentence, and he did not move to withdraw the plea or to vacate the judgment of conviction on that ground" ( People v. Pryce , 148 A.D.3d 1629, 1630, 51 N.Y.S.3d 296 [4th Dept. 2017], lv denied 29 N.Y.3d 1085, 64 N.Y.S.3d 175, 86 N.E.3d 262 [2017] ; see People v. Sprague , 82 A.D.3d 1649, 1649, 919 N.Y.S.2d 433 [4th Dept. 2011], lv denied 17 N.Y.3d 801, 929 N.Y.S.2d 110, 952 N.E.2d 1105 [2011] ).
In any event, defendant's contention lacks merit. During the plea proceeding, the court advised defendant that it would not be bound by the plea agreement to impose the promised sentence if, among other things, he failed to appear for sentencing. The court further advised defendant that it could impose the maximum sentence if he failed to appear for sentencing and that he would not be allowed to withdraw his plea. Defendant failed to appear for sentencing and was arrested several weeks later in North Carolina. "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" ( People v. Goodman , 79 A.D.3d 1285, 1286, 911 N.Y.S.2d 688 [3d Dept. 2010] ; see People v. Figgins , 87 N.Y.2d 840, 841, 637 N.Y.S.2d 684, 661 N.E.2d 156 [1995] ).