Opinion
2013-03-15
The PEOPLE of the State of New York, Respondent, v. David C. RODMAN, Defendant–Appellant.
Linda M. Campbell, Syracuse, for Defendant–Appellant. Gregory S. Oakes, District Attorney, Oswego, for Respondent.
Linda M. Campbell, Syracuse, for Defendant–Appellant. Gregory S. Oakes, District Attorney, Oswego, for Respondent.
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.
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 N.Y.2d 431, 436, 418 N.Y.S.2d 371, 391 N.E.2d 1347), including sentencing ( seeCPL 380.40[1] ), that right may be waived ( see People v. Parker, 57 N.Y.2d 136, 139, 454 N.Y.S.2d 967, 440 N.E.2d 1313). “If a defendantfails 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 A.D.3d 947, 947–948, 839 N.Y.S.2d 645;see People v. Major, 68 A.D.3d 1244, 1245, 890 N.Y.S.2d 186,lv. denied14 N.Y.3d 772, 898 N.Y.S.2d 104, 925 N.E.2d 109). “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 A.D.3d at 948, 839 N.Y.S.2d 645;see Parker, 57 N.Y.2d at 142, 454 N.Y.S.2d 967, 440 N.E.2d 1313;Major, 68 A.D.3d at 1245, 890 N.Y.S.2d 186).
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 N.Y.2d at 142, 454 N.Y.S.2d 967, 440 N.E.2d 1313). 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 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 A.D.3d 751, 751–752, 777 N.Y.S.2d 924;People v. Howington, 216 A.D.2d 960, 960, 628 N.Y.S.2d 921,lv. denied86 N.Y.2d 781, 631 N.Y.S.2d 627, 655 N.E.2d 724).
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 A.D.3d 716, 717–718, 893 N.Y.S.2d 618). 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 1 1/3 to 4 years' incarceration ( see People v. Haran, 72 A.D.3d 1289, 1289–1290, 899 N.Y.S.2d 406). 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 A.D.3d 1466, 1467, 896 N.Y.S.2d 760,lv. denied15 N.Y.3d 754, 906 N.Y.S.2d 827, 933 N.E.2d 226;see Hassman, 70 A.D.3d at 718, 893 N.Y.S.2d 618;see generally People v. Bassoff, 51 A.D.3d 682, 683, 857 N.Y.S.2d 664,lv. denied 11 N.Y.3d 734, 864 N.Y.S.2d 392, 894 N.E.2d 656;People v. Almo, 300 A.D.2d 503, 504, 752 N.Y.S.2d 77,lv. denied99 N.Y.2d 611, 612, 757 N.Y.S.2d 822, 787 N.E.2d 1168). 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 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46;cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.