People v. Tripp

232 A.D.2d 200, 648 N.Y.S.2d 434, 1996 N.Y. App. Div. LEXIS 9820

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 1996
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Jerome Marks, J., at suppression hearing; Ronald Zweibel, J., at plea and sentence), rendered May 5, 1992, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 71h to 15 years, unanimously affirmed.

Since defendant explicitly waived his right to appeal as a condition of his plea agreement, and such plea and waiver were voluntarily, knowingly and intelligently made, his claims concerning the adverse discovery ruling (a claim waived by operation of the guilty plea itself), the denial of his motion to suppress (see, People v White, 228 AD2d 308), and the severity of his sentence (see, People v Frazier, 228 AD2d 171), were thereby waived (see generally, People v Seaberg, 74 NY2d 1).

Defendant was properly sentenced in absentia since the record establishes that, by failing to remain in the courtroom on the date of sentencing, defendant breached one of the conditions of the plea agreement, the consequence of which, thoroughly explained to him at the plea proceeding, was a waiver of the right to be present at sentencing (see, People v Parker, 57 NY2d 136, 140-141; People v Thompson, 186 AD2d 294, lv denied 81 NY2d 795). Based upon the circumstances presented herein, a waiver was properly found in the absence of a hearing (see, People v McGrew, 198 AD2d 6, lv denied 83 NY2d 807; see also, Matter of Root v Kapelman, 67 AD2d 131, lv denied 47 NY2d 706). Concur—Milonas, J. P., Rosenberger, Wallach, Kupferman and Tom, JJ.