People v. Gentry

Decision Date09 May 2019
Docket Number110417,108568
Citation100 N.Y.S.3d 140,172 A.D.3d 1526
Parties The PEOPLE of the State of New York, Respondent, v. Ramel GENTRY, Appellant.
CourtNew York Supreme Court — Appellate Division

Todd G. Monahan, Schenectady, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Devine, JJ.

MEMORANDUM AND ORDER

Mulvey, J.Appeals (1) from a judgment of the County Court of Schenectady County (Murphy III, J.), rendered March 28, 2016, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree, and (2) by permission, from an order of said court (Sypniewski, J.), entered June 13, 2018, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence, without a hearing.

Defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree in full satisfaction of a seven-count indictment and waived the right to appeal, with the understanding that he would be sentenced to five years in prison, followed by three years of postrelease supervision. During the plea colloquy, County Court (Murphy III, J.) advised defendant that if he failed to appear at sentencing, he could be sentenced to up to eight years in prison plus postrelease supervision, and defendant affirmed his understanding thereof.1

After defendant failed to appear at sentencing, a bench warrant was issued. Defendant was arrested on the warrant and the People requested that County Court enhance defendant's sentence based upon his failure to appear at sentencing and the fact that, following his plea, defendant had been arrested and charged with several crimes, including a felony. Following an Outley hearing, County Court determined that defendant had violated the conditions of the plea agreement and sentenced him, as a second felony offender, to eight years in prison, followed by three years of postrelease supervision. Defendant's subsequent motion to vacate the sentence pursuant to CPL 440.20 was denied by County Court (Sypniewski, J.) without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the order denying his CPL 440.20 motion.

We affirm. As for the direct appeal, we find unpersuasive defendant's challenge to the sufficiency of the proof that he violated a condition of his plea agreement. The record reflects that, during the plea colloquy, County Court (Murphy III, J.) warned defendant of the ramifications for failing to appear at sentencing, including the potentially longer sentence. At the originally-scheduled sentencing hearing, defense counsel informed the court that he had received a telephone call that morning from defendant's girlfriend advising counsel that defendant had a family medical emergency and was unable to attend the hearing at the scheduled time, but that he would be available that afternoon. County Court adjourned sentencing to the afternoon, but defendant failed to appear without any further communication with counsel or the court, resulting in a bench warrant. Following his arrest three months later, defendant failed to provide any further explanation for his failure to appear at sentencing. Additionally, the People offered proof that defendant was not in any jail, prison or local hospital at the time he was supposed to be in court. Inasmuch as defendant's failure to appear for sentencing, standing alone, provided a basis for enhancing the sentence, we find that County Court did not abuse its discretion by imposing an enhanced sentence (see People v. Brown, 163 A.D.3d 1269, 1270–1271, 82 N.Y.S.3d 218 [2018] ; People v. Smith, 160 A.D.3d 664, 665, 73 N.Y.S.3d 600 [2018] ).

Because defendant was advised of the potential consequences of failing to appear for sentencing, including the maximum sentence that could be imposed, his challenge to the severity of the enhanced sentence is precluded by his unchallenged waiver of the right to appeal (see People v. Brown, 163 A.D.3d at 1270–1271, 82 N.Y.S.3d 218 ; People v. Crowder, 110 A.D.3d 1384, 1386, 973 N.Y.S.2d 871 [2013], affd 24 N.Y.3d 1134, 3 N.Y.S.3d 309, 26 N.E.3d 1164 [2015] ; People v. Brown, 101 A.D.3d 1267, 1268–1269, 956 N.Y.S.2d 618 [2012], lv denied 21 N.Y.3d 1014, 971 N.Y.S.2d 496, 994 N.E.2d 392 [2013], cert denied 571 U.S. 1143, 134 S.Ct. 938, 187 L.Ed.2d 808 [2014] ). "Notably, defendant's breach of the plea agreement and the subsequent imposition of the enhanced sentence did not render defendant's waiver of the right to appeal unenforceable" ( People v. Segrue, 274 A.D.2d 671, 672, 710 N.Y.S.2d 466 [2000] [citation omitted], lv denied 95 N.Y.2d 908, 716 N.Y.S.2d 649, 739 N.E.2d 1154 [2000] ).

Defendant contends – both as part of his direct appeal and on his appeal from the denial of his CPL 440.20 motion – that County Court's finding that he violated the terms of the plea agreement and the resultant enhanced sentence were the product of ineffective assistance of counsel. On direct appeal, defendant attacks counsel's statements to the court on the originally-scheduled sentencing date, wherein he relayed the information supplied by defendant's girlfriend regarding defendant's absence. By indicating that defendant could not attend due to a family medical emergency, counsel did not take a position that was adverse to that of defendant (see People v. Cain, 235 A.D.2d 429, 430, 652 N.Y.S.2d 542 [1997] ; compare People v. Prater, 127 A.D.3d 1249, 1250, 4 N.Y.S.3d 553 [2015] ). Counsel acted reasonably in accepting a short adjournment for defendant to appear, because defendant's girlfriend had informed counsel that defendant could be in court by the early afternoon. Although counsel did not request another adjournment when defendant failed to appear that afternoon, we will not second-guess that choice; such a request likely would have been futile considering that counsel had no further information or basis therefor.

As for the ineffective assistance arguments raised in relation to defendant's postjudgment motion, the record indicates that County Court (Sypniewski, J.) did not err in resolving them without a hearing (see CPL 440.30[4] ). Defendant's claim that he was not made aware of the Outley hearing is belied by the record. Defendant was present when the court scheduled that hearing for the next appearance...

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