People v Nesbitt

People v Nesbitt 2015 NY Slip Op 00922 Decided on February 5, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 5, 2015
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[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

TERRANCE F. NESBITT, Appellant.

Calendar Date: December 2, 2014
Before: Lahtinen, J.P., Egan Jr., Devine and Clark, JJ.

Jay L. Wilber, Public Defender, Binghamton (Michael A. Vargha of counsel), for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered May 10, 2013, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.

In satisfaction of a four-count indictment, defendant pleaded guilty to criminal possession of a controlled substance in the fifth degree. Under the terms of the plea agreement, he waived his right to appeal and was to be sentenced as a second felony offender to 2½ years in prison, to be followed by one year of postrelease supervision. At defendant's request, County Court adjourned the date of sentencing to allow defendant time to attend his son's birthday party. The court, however, admonished defendant that he was required to appear in court at 9:30 a.m. on March 5, 2013 for sentencing and that, if he did not, the court

could impose a sentence greater than the agreed-upon sentence. Defendant failed to appear in court on the sentencing date at 9:30 a.m., but showed up at approximately 1:00 p.m. County Court postponed sentencing to consider whether the sentence should be enhanced, and the matter was adjourned further as a result of defendant's motion to withdraw his plea. County Court denied the motion and ultimately sentenced defendant to three years in prison to be followed by two years of postrelease supervision. Defendant now appeals.

Defendant asserts that County Court abused its discretion in imposing the enhanced sentence. We disagree. County Court went out of its way to accommodate defendant's request to have sentencing adjourned so that he could attend his son's birthday party and even gave defendant an extra day so that he would not have to return on the date of the party. The court [*2]specifically warned him of the consequences of failing to appear, including the potentially longer sentence he faced, and indicated that bad weather or other such issues were not legitimate excuses. Nevertheless, defendant failed to appear at the required time and, when he finally came to court, claimed to have had transportation problems. Under the circumstances presented here, we cannot conclude that County Court abused its discretion in imposing an enhanced sentence (see People v Goodman, 79 AD3d 1285, 1286 [2010]; People v Baez, 67 AD3d 1204 [2009], lv denied 14 NY3d 797 [2010]).

Lahtinen, J.P., Egan Jr., Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed.