People v Smith |
2018 NY Slip Op 04790 [162 AD3d 1408] |
June 28, 2018 |
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 Clarence D. Smith, Appellant. |
Michael P. Graven, Owego, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen Ferri of counsel), for respondent.
Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered July 28, 2016, convicting defendant upon his plea of guilty of the crime of aggravated unlicensed operation of a motor vehicle in the first degree.
In July 2015, defendant pleaded guilty as charged in an indictment to aggravated unlicensed
operation of a motor vehicle (hereinafter AUO) in the first degree, stemming from his conduct in
knowingly driving while his license was suspended, having previously had his privilege to drive
suspended on 10 or more separate occasions. At the time of the plea, County Court agreed to cap
his sentence at one year in jail but warned him that, if he were charged with further criminal
conduct, it would not be bound to the promised sentence and could impose a prison term of up to
1
We affirm. Defendant argues that County Court failed to conduct a sufficient inquiry before imposing an enhanced sentence (see People v Outley, 80 NY2d 702, 713 [1993]). However, at sentencing, after the court reviewed the history of this matter since defendant's guilty plea, which defense counsel conceded, the court advised defendant on the record that it intended to impose an enhanced sentence.[FN1] Defendant never objected to the enhanced sentence during the sentencing proceeding or requested further inquiry, and did not move to withdraw his guilty plea and, thus, this claim is unpreserved for our review (see People v Lopez, 157 AD3d 1163, 1163-1164 [2018]; People v Rushlow, 137 AD3d 1482, 1483 [2016]; cf. People v Turner, 158 AD3d 892, 893 [2018]). Were we to review this issue despite the lack of preservation, we would find that the court clearly advised defendant of the conditions that he must abide by or risk enhancement (see People v Lester, 141 AD3d 951, 954 [2016], lv denied 28 NY3d 1185 [2017]; cf. People v Rushlow, 137 AD3d at 1483-1484; People v Tole, 119 AD3d 982, 984 [2014]). Further, the court conducted a sufficient inquiry at several appearances during which it considered the accusatory instruments and ongoing arguments of counsel, all of which established that an enhanced sentence was warranted (see People v Albergotti, 17 NY3d 748, 750 [2011]; People v Driscoll, 131 AD3d 766, 767 [2015], lv denied 27 NY3d 996 [2016]).
We are unpersuaded by defendant's further contention that the enhanced sentence is harsh and excessive.[FN2] The record reflects that defendant has an extensive history of driving while his license is suspended and, following his guilty plea, frustrated County Court's repeated efforts to impose the agreed-upon or a lesser sentence. Under these circumstances, we find no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v Slamp, 145 AD3d 1320, 1321 [2016]).
Garry, P.J., McCarthy, Clark, Aarons and Rumsey, JJ., concur. Ordered that the judgment is affirmed.