People v. Klein , 998 N.Y.S.2d 676 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 29, 2015 105917
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
ROBERT R. KLEIN III,
Appellant.
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Calendar Date: November 21, 2014
Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.
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Abbie Goldbas, Utica, for appellant, and appellant pro se.
Mark D. Suben, District Attorney, Cortland (Kenneth H.
Tyler of counsel), for respondent.
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Clark, J.
Appeal from a judgment of the County Court of Cortland
County (Campbell, J.), rendered November 15, 2012, convicting
defendant upon his plea of guilty of the crime of attempted
burglary in the third degree.
In satisfaction of a five-count indictment, defendant
pleaded guilty to attempted burglary in the third degree and
waived his right to appeal. Under the terms of the plea
agreement, he was to be sentenced as a second felony offender to
1½ to 3 years in prison. He was advised that, if he did not
appear for sentencing and lacked a legitimate excuse for his
absence, he could be sentenced in absentia to 2 to 4 years in
prison. County Court adjourned sentencing twice. Thereafter,
defense counsel made two more requests for adjournments, the
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first of which was based on defendant's need to resolve pending
legal matters and the second of which was based on him having
left Cortland County for work and having no ability to return.
County Court denied those requests and, when defendant did not
appear, sentenced him in absentia to 2 to 4 years in prison.
Defendant now appeals.
We affirm. Defendant argues that County Court abused its
discretion in sentencing him in absentia to an enhanced sentence,
a claim that survives defendant's appeal waiver (see People v
Brown, 101 AD3d 1267, 1268 [2012], lv denied 21 NY3d 1014 [2013],
cert denied US , 134 S. Ct. 938 [2014]; People v Hall, 78
AD3d 1328, 1328 [2010]). Turning to the merits, defendant waived
his right to be present at sentencing when he failed to appear,
despite having been warned of the potential consequences of doing
so (see People v Brown, 101 AD3d at 1268; People v Haran, 72 AD3d
1289, 1289-1290 [2010]). County Court then considered the
proffered reason for defendant's absence and found it to be
unpersuasive. Under the circumstances of this case, we cannot
say that County Court abused its discretion by sentencing
defendant in absentia to an enhanced sentence (see People v
Brown, 101 AD3d at 1268; People v Haran, 72 AD3d at 1289-1290;
People v Torra, 8 AD3d 751, 751-752 [2004]).
McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court