Opinion
June 5, 1995
Appeal from the Supreme Court, Kings County (Tomei, J.).
Ordered that the sentence is affirmed.
The defendant pleaded guilty to criminal possession of a weapon in the third degree with the understanding that if he appeared for sentencing, a definite term of one year of imprisonment would be imposed. The defendant was advised, however, that if he failed to appear for sentencing, the court would not abide by its sentencing commitment, and would impose a longer term of imprisonment. The defendant failed to appear for sentencing, and when he was involuntarily returned to court two years later, he was sentenced to an enhanced term of two to six years imprisonment.
Although the defendant waived his right to appeal, the waiver was conditioned on the imposition of a definite sentence of one year. Because the sentence imposed was an enhanced term of two to six years of imprisonment, the waiver may not be enforced (see, People v. Patterson, 211 A.D.2d 829; People v. Prescott, 196 A.D.2d 599). Upon appellate review, however, we find that the sentence ultimately imposed was neither unduly harsh nor excessive (see, People v. Delgado, 80 N.Y.2d 780). Furthermore, the defendant's challenge to the imposition of the mandatory surcharge is premature (see, People v. West, 124 Misc.2d 622; People v Burke, 204 A.D.2d 345; People v. Fields, 193 A.D.2d 814). Mangano, P.J., Sullivan, Balletta, Santucci and Krausman, JJ., concur.