People v. McCauley

37 A.D.3d 739, 832 N.Y.S.2d 206

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 2007
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Suffolk County (Braslow, J.), rendered October 6, 2005, convicting him of attempted criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed, with costs.

The defendant’s purported waiver of his right to appeal was invalid because it was based on an incorrect statement of law (see People v Moyett, 7 NY3d 892 [2006]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Rodriguez, 32 AD3d 481, 482 [2006]; People v Matthews, 21 AD3d 499, 500 [2005]; People v D'Avila, 21 AD3d 905 [2005]). However, the defendant’s challenge to his enhanced sentence is without merit. The defendant was expressly advised and acknowledged before the sentence date that he would receive an enhanced sentence if he failed to appear for sentencing (see People v Anthony, 247 AD2d 397, 398 [1998]; People v Stewart, 244 AD2d 585 [1997]; People v Fields, 197 AD2d 633 [1993]). Moreover, the court conducted a sufficient inquiry into the defendant’s reason for failing to appear. Schmidt, J.E, Krausman, Goldstein, Covello and Angiolillo, JJ., concur.