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The People of the State of v. Mark Brown

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


December 13, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
MARK BROWN, APPELLANT.

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered July 14, 2011, convicting defendant upon his plea of guilty of the crime of attempted robbery in the second degree.

The opinion of the court was delivered by: Garry, J.

MEMORANDUM AND ORDER

Calendar Date: November 13, 2012

Before: Mercure, J.P., Lahtinen, Malone Jr., Stein and

Garry, JJ.

Defendant was charged in an indictment with two counts of robbery in the second degree and grand larceny in the fourth degree. At his arraignment, defendant executed a written Parker admonishment, which included a warning that the case, including sentencing, would proceed in his absence, and County Court (Hoye, J.) confirmed that defendant understood that he could be sentenced in absentia. Defendant subsequently pleaded guilty to attempted robbery in the second degree in full satisfaction of the charges and waived his right to appeal.

Pursuant to the plea agreement, defendant was to be sentenced as a persistent violent felony offender to a term of imprisonment of 12 years to life. County Court (Giardino, J.) informed defendant that if he failed to appear at sentencing, he could be sentenced to the maximum prison term of 25 years to life. After defendant failed to appear at sentencing, County Court ultimately sentenced him, as a persistent violent felony offender, to a prison term of 25 years to life. Defendant appeals.

We affirm. Initially, we reject defendant's contention that he did not validly waive his right to appeal. The record reflects that County Court distinguished the right to appeal from the rights forfeited by his guilty plea, and defendant affirmed his understanding of the consequences of the waiver. Thereafter, defendant executed a written waiver acknowledging that he had discussed the right to appeal with counsel and was voluntarily waiving it. Accordingly, we conclude that defendant's waiver of the right to appeal was valid (see People v Tolliver, 92 AD3d 1024, 1024 [2012]; People v Shaver, 92 AD3d 978, 979 [2012], lv denied 18 NY3d 998 [2012]).

Defendant's contention that County Court erred in imposing an enhanced sentence on him in absentia survives his appeal waiver (see People v Hall, 78 AD3d 1328, 1328 [2010]; People v Terrell, 41 AD3d 1044, 1045 [2007]). The record reveals, however, that defendant was advised that sentencing could proceed in his absence and of the potential sentence he faced if he failed to appear for sentencing (see People v Haran, 72 AD3d 1289, 1289-1290 [2010]; People v Baez, 67 AD3d 1204, 1204 [2009], lv denied 14 NY3d 797 [2010]). Under these circumstances, County Court properly sentenced defendant in absentia. Finally, defendant's claim that the enhanced sentence is harsh and excessive is precluded by his waiver of the right to appeal his conviction and sentence, as he was informed of the consequences of his failure to appear at sentencing (see People v Carter, 64 AD3d 1089, 1090 [2009], lv denied 13 NY3d 835 [2009]; People v Hill, 18 AD3d 966, 967 [2005], lv denied 5 NY3d 763 [2005]; People v Schryver, 306 AD2d 626, 626 [2003], lv denied 100 NY2d 598 [2003]).

Mercure, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20121213

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