People v Klein |
2015 NY Slip Op 00660 [124 AD3d 1143] |
January 29, 2015 |
Appellate Division, Third Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
The People of the State of New York,
Respondent, v Robert R. Klein III, Appellant. |
Abbie Goldbas, Utica, for appellant, and appellant pro se.
Mark D. Suben, District Attorney, Cortland (Kenneth H. Tyler of counsel), for respondent.
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 1
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 571 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; [*2]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.