Opinion
1167 KA 20-00949
04-22-2022
The PEOPLE of the State of New York, Respondent, v. Kristine M. BAKER, Defendant-Appellant.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting her upon her plea of guilty of robbery in the second degree ( Penal Law § 160.10 [1] ), defendant contends that County Court erred in imposing an enhanced sentence and that the enhanced sentence is unduly harsh and severe. We affirm.
During the plea proceeding but after she had waived her right to appeal, the court advised defendant that it would not be bound by the plea agreement to impose the promised sentence of, at most, 41/2 years of imprisonment plus five years of postrelease supervision if, among other things, defendant was arrested on new charges prior to sentencing or defendant failed to appear for sentencing. The court further advised defendant that it could impose the maximum sentence if she violated either of those conditions. Defendant was arrested after entering her plea and failed to appear for one of the adjourned sentencing and Outley hearing dates. As a result, the court determined that defendant had violated the terms of her plea agreement and sentenced her to 5½ years in prison with five years of postrelease supervision.
Initially, we note that defendant's waiver of the right to appeal does not encompass her contentions on appeal because the court failed to advise her "of either the conduct that could result in the imposition of an enhanced sentence ... or the potential periods of incarceration for an enhanced sentence" before she waived her right to appeal ( People v. Sundown , 305 A.D.2d 1075, 1075-1076, 758 N.Y.S.2d 736 [4th Dept. 2003] ; see People v. Semple , 23 A.D.3d 1058, 1059, 804 N.Y.S.2d 192 [4th Dept. 2005], lv denied 6 N.Y.3d 852, 816 N.Y.S.2d 758, 849 N.E.2d 981 [2006] ; cf. People v. May , 169 A.D.3d 1365, 1365, 91 N.Y.S.3d 744 [4th Dept. 2019] ). We nevertheless reject defendant's contention that the court erred in imposing an enhanced sentence. Defendant failed to raise in the sentencing court the contention that an enhanced sentence could not be imposed because the People did not establish her arrest, and thus that contention is unpreserved for appellate review (see generally People v. Harris , 289 A.D.2d 1068, 1068, 735 N.Y.S.2d 851 [4th Dept. 2001], lv denied 98 N.Y.2d 637, 744 N.Y.S.2d 766, 771 N.E.2d 839 [2002] ; People v. Miles , 268 A.D.2d 489, 490, 703 N.Y.S.2d 491 [2d Dept. 2000], lv denied 95 N.Y.2d 800, 711 N.Y.S.2d 168, 733 N.E.2d 240 [2000] ). Contrary to defendant's further contention, the court properly determined that there was a legitimate basis for her arrest. At the Outley hearing, the complainant testified that defendant brandished a knife and threatened to stab the complainant before spraying the complainant with pepper spray. The court therefore properly imposed an enhanced sentence on the basis that defendant had violated the "no-arrest condition" of her plea agreement ( People v. Outley , 80 N.Y.2d 702, 713, 594 N.Y.S.2d 683, 610 N.E.2d 356 [1993] ; see People v. Fumia , 104 A.D.3d 1281, 1281-1282, 960 N.Y.S.2d 826 [4th Dept. 2013], lv denied 21 N.Y.3d 1004, 971 N.Y.S.2d 255, 993 N.E.2d 1278 [2013] ). In any event, because defendant failed to appear at a scheduled sentencing date, defendant violated another condition of the plea agreement and, on that basis, the court "was no longer bound by the agreed-upon sentence" ( People v. Henry , 192 A.D.3d 1504, 1505, 140 N.Y.S.3d 801 [4th Dept. 2021] [internal quotation marks omitted]; see People v. Figgins , 87 N.Y.2d 840, 841, 637 N.Y.S.2d 684, 661 N.E.2d 156 [1995] ). Contrary to defendant's assertion, the court warned defendant at the time it adjourned sentencing and scheduled the Outley hearing that her failure to appear could result in an enhanced sentence. We reject defendant's alternative contention that she presented a reasonable excuse for her absence (see People v. Gonzales , 231 A.D.2d 939, 940, 647 N.Y.S.2d 900 [4th Dept. 1996], lv denied 89 N.Y.2d 923, 654 N.Y.S.2d 725, 677 N.E.2d 297 [1996] ).
Finally, we reject defendant's contention that the enhanced sentence is unduly harsh and severe.