People v. Cain

• Decision Date: 13 January 1997
• Citation: 235 A.D.2d 429,652 N.Y.S.2d 542
• Parties: The PEOPLE, etc., Respondent, v. Earl CAIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 542

652 N.Y.S.2d 542

235 A.D.2d 429

The PEOPLE, etc., Respondent, v. Earl CAIN, Appellant.

Supreme Court of New York, Appellate Division, Second Department.

Jan. 13, 1997.

Andrew M. Friedman, Richard Hill, for appellant.

Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Nicoletta J. Caferri, and Lori Anne Fee, of counsel), for respondent.

Appeal by the defendant from two judgments of the Supreme Court, Queens County (Rotker, J.), both rendered June 30, 1993, convicting him of criminal sale of a controlled substance in the third degree under Indictment No. 12155/92, and criminal sale of a controlled substance in the third degree under Indictment No. 13175/92, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are affirmed.

Contrary to the defendant's assertions on appeal, he was not deprived of his right to counsel at sentencing. With regard to the defendant's absence at the time of sentencing, defense counsel did not take a position "adverse" to that of the defendant (see, e.g., People v. Rozzell, 20 N.Y.2d 712, 282 N.Y.S.2d 775, 229 N.E.2d 452; People v. Wilson, 15 N.Y.2d 634, 255 N.Y.S.2d 675, 203 N.E.2d 925; People v. Wilson, 91 A.D.2d 1052, 458 N.Y.S.2d 655). The record reveals that the court based its determination (that the defendant's absence at the time of sentencing was knowing and voluntary) on the evidence presented by the People, not on any statements by defense counsel (see, People v. Greene, 208 A.D.2d 764, 618 N.Y.S.2d 539; People v. Sutton, 39 A.D.2d 820, 332 N.Y.S.2d 983).

The court did not err in imposing the promised enhanced sentences when the defendant violated a condition of his pleas of guilty (see, People v. Figgins, 87 N.Y.2d 840, 637 N.Y.S.2d 684, 661 N.E.2d 156; People v. Thorpe, 189 A.D.2d 903, 592 N.Y.S.2d 990). Further, the sentences imposed were neither harsh nor excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

ROSENBLATT, J.P., and RITTER, FRIEDMANN and FLORIO, JJ., concur.