PRYCE, WAYNE A., PEOPLE v ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
250
KA 14-00990
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
WAYNE A. PRYCE, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, ESQS.,
SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (CHRIS EAGGLESTON
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered January 11, 2012. The judgment convicted
defendant, upon his plea of guilty, of attempted burglary in the
second 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 attempted burglary in the second degree (Penal Law
§§ 110.00, 140.25 [2]), we reject defendant’s challenge to County
Court’s acceptance of the guilty plea. Defendant’s contention that
his plea was not knowingly, voluntarily, or intelligently entered
because he did not personally recite the elements of the crime to
which he pleaded guilty is actually a challenge to the factual
sufficiency of the plea allocution, and that contention is not
preserved for our review inasmuch as defendant did not move to
withdraw his plea or to vacate the judgment of conviction (see People
v Loper, 118 AD3d 1394, 1395, lv denied 25 NY3d 1204; see also People
v Rinker, 141 AD3d 1177, 1177, lv denied 28 NY3d 1030). Contrary to
defendant’s contention, we conclude that this case does not fall
within the narrow exception to the preservation requirement (see
People v Bonacci, 119 AD3d 1348, 1349, lv denied 24 NY3d 1042; see
generally People v Lopez, 71 NY2d 665, 666-667). In any event, the
court was not required to have defendant personally recite the facts
underlying the crime during the plea colloquy where, as here, the
record establishes that defendant confirmed the accuracy of the
court’s recitation of the facts underlying the crime (see People v
Gordon, 98 AD3d 1230, 1230, lv denied 20 NY3d 932). Moreover, the
fact that defendant gave “ ‘monosyllabic responses to [the court’s]
questions did not render the plea invalid’ ” (id. at 1230).
-2- 250
KA 14-00990
Defendant additionally contends that the court erred in imposing
an enhanced sentence based on his failure to appear at sentencing
without affording him an opportunity to withdraw his plea. That
contention is not preserved for our review inasmuch as defendant 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 (see
People v Sprague, 82 AD3d 1649, 1649, lv denied 17 NY3d 801; see also
People v Blake, 126 AD3d 1375, 1375-1376, lv denied 26 NY3d 1143). In
any event, the record establishes that the court informed defendant
during the plea proceeding that it could and would impose an enhanced
sentence in the event that he failed to appear at sentencing. Thus,
“[b]y failing to appear at the scheduled sentencing, defendant
violated the terms of the plea agreement[,] and the court was no
longer bound by the agreed-upon sentence” (People v Goodman, 79 AD3d
1285, 1286; see Blake, 126 AD3d at 1376).
We have considered defendant’s challenge to the severity of his
sentence and conclude that it is without merit.
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court