People v. Webster

202 A.D.2d 710, 608 N.Y.S.2d 552, 1994 N.Y. App. Div. LEXIS 1793

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 3, 1994
• Status: Published

Opinion

White, J.

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered November 20, 1992, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.

In return for his plea of guilty of the crime of burglary in the third degree, County Court promised defendant that it would sentence him as a second felony offender to a term of 2 to 4 years provided he appeared for sentencing. If he did not, the court advised defendant that it would impose the maximum sentence of 3 Vi to 7 years. Defendant acknowledged that he understood the condition. Nevertheless, he failed to appear for sentencing. When he was ultimately brought before County Court, he was given the maximum sentence. Defendant appeals, contending that County Court abused its discretion and that the sentence is harsh and excessive.

When, as here, the promised sentence is conditioned upon defendant’s appearance on the sentencing date, a harsher sentence may be imposed if the condition is not fulfilled (compare, People v Outlaw, 157 AD2d 677; People v White, 144 AD2d 711; People v Sumner, 137 AD2d 891). Therefore, given the fact that the sentence imposed is the one County Court indicated would be imposed, and considering defendant’s criminal history which goes back to 1974, we find that County Court did not abuse its discretion in sentencing defendant to a prison term of 3 Vi to 7 years, nor was the sentence harsh or excessive.

Cardona, P. J., Mikoll, Casey and Yesawich Jr., JJ., concur. Ordered that the judgment is affirmed.