SPRAGUE, ALVIS D., PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
301
KA 08-01759
PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND GORSKI, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ALVIS D. SPRAGUE, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.
ALVIS D. SPRAGUE, DEFENDANT-APPELLANT PRO SE.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered June 5, 2008. The judgment convicted defendant,
upon his plea of guilty, of grand larceny in the third degree.
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 grand larceny in the third degree (Penal Law §
155.35 [1]), defendant contends in his pro se supplemental brief that
County Court erred in imposing an enhanced sentence 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 (see People v Fortner, 23 AD3d 1058; People
v Sundown, 305 AD2d 1075). In any event, defendant’s contention lacks
merit. “When a defendant violates a condition of the plea agreement,
the court is no longer bound by the agreement and is free to impose a
greater sentence without offering [the] defendant an opportunity to
withdraw his [or her] plea” (People v Santiago, 269 AD2d 770, 770; see
People v Figgins, 87 NY2d 840; People v Cato, 226 AD2d 1066, lv denied
88 NY2d 877). The record establishes that defendant was clearly
informed of the consequences of his failure to appear at sentencing
and the date on which sentencing was scheduled, and he nevertheless
failed to appear on that date. The remaining contentions of defendant
in his pro se supplemental brief are without merit. Contrary to the
contention of defendant in his main brief, the sentence is not unduly
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KA 08-01759
harsh or severe.
Entered: March 25, 2011 Patricia L. Morgan
Clerk of the Court