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People v. Yerkes

State of New York Supreme Court, Appellate Division Third Judicial Department


June 24, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
RICHARD YERKES, APPELLANT.

MEMORANDUM AND ORDER

Calendar Date: May 12, 2010

Before: Spain, J.P., Rose, Lahtinen, McCarthy and Garry, JJ.

Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered February 26, 1991, convicting defendant upon his plea of guilty of the crime of conspiracy in the second degree.

In 1991, defendant pleaded guilty to conspiracy in the second degree in full satisfaction of an indictment charging him with this crime. Under the terms of the plea agreement, he was to be sentenced to 2 to 6 years in prison. County Court, however, admonished defendant that if he did not appear for sentencing, he would be sentenced to the maximum authorized term of imprisonment. Defendant absconded from the jurisdiction and did not appear for sentencing. As a result, he was sentenced in absentia to the maximum term of imprisonment of 8a to 25 years. He now appeals.

Initially, we note that enhancement of the sentence was justified given defendant's clear violation of the condition of the plea agreement that he appear for sentencing (see People v Bove, 64 AD3d 812, 812-813 [2009], lv denied 13 NY3d 858 [2009]; People v Favor, 49 AD3d 915, 915 [2008]). Notably, defendant not only failed to appear for sentencing, but he absconded from the jurisdiction and lived in a number of different states over the course of a 15-year period until he was finally located and returned to New York in 2006. We find no merit to defendant's claim that the enhanced sentence is harsh and excessive. Defendant was fully aware of the consequences of his failure to appear at sentencing and had a criminal record dating back to 1979 (see e.g. People v Diaz, 264 AD2d 879 [1999], lv denied 94 NY2d 879 [2000]). Therefore, we find no extraordinary circumstances nor any abuse of discretion that would warrant reducing the sentence in the interest of justice (see People v Thomas, 56 AD3d 815, 816 [2008]; People v Shaw, 51 AD3d 1062, 1063 [2008], lv denied 10 NY3d 964 [2008]).

Spain, J.P., Rose, Lahtinen, McCarthy and Garry, JJ., concur.

ORDERED that the judgment is affirmed.

20100624

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