People v. Hamilton

197 A.D.2d 873, 604 N.Y.S.2d 876, 1993 N.Y. App. Div. LEXIS 9274

Opinion

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Oneida County Court for further proceedings in accordance with the following Memorandum: At the plea hearing held on December 8, 1991, the court accepted defendant’s plea and advised defendant that he would be sentenced to three to six years, and that, if he did not appear at the sentencing hearing on February 8, 1992, the maximum sentence would be imposed. February 8 was a Saturday, however, and the actual date of the sentencing hearing was February 10. When defendant failed to appear on February 10, the court denied defense counsel’s motion for an adjournment and sentenced defendant in absentia to the maximum sentence of TVi to 15 years. The People have not provided any proof that defendant’s absence was deliberate and was not the result of the court’s misstatement. Therefore, the sentence must be vacated and the matter remitted to Oneida County Court and defendant given an opportunity to withdraw his plea (see, People v Lefler, 193 AD2d 1143). (Appeal from Judgment of Oneida County Court, Buckley, J.—Attempted Criminal Sale Controlled Substance, 3rd Degree.) Present— Denman, P. J., Balio, Lawton, Doerr and Boehm, JJ.