Calendar Date: May 8, 2018
Michael P. Graven, Owego, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton
(Stephen Ferri of counsel), for respondent.
Before: Garry, P.J., McCarthy, Clark, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
from a judgment of the County Court of Broome County (Cawley
Jr., J.), rendered July 28, 2016, convicting defendant upon
his plea of guilty of the crime of aggravated unlicensed
operation of a motor vehicle in the first degree.
2015, defendant pleaded guilty as charged in an indictment to
aggravated unlicensed operation of a motor vehicle
(hereinafter AUO) in the first degree, stemming from his
conduct in knowingly driving while his license was suspended,
having previously had his privilege to drive suspended on 10
or more separate occasions. At the time of the plea, County
Court agreed to cap his sentence at one year in jail but
warned him that, if he were charged with further criminal
conduct, it would not be bound to the promised sentence and
could impose a prison term of up to 1⅓ to 4 years.
That warning was repeated later, when defendant failed to
appear for probation interviews. Over the ensuing months,
defendant was again charged by indictment with AUO in the
first degree and driving while intoxicated and, separately,
with promoting prison contraband in the second degree. At an
appearance in March 2016, at defense counsel's request,
the court adjourned the matter to permit defendant to pay off
all of his pending fines and resolve the suspensions,
promising that, if he complied, the court would impose six
months of weekends in jail to permit him to work. The court
warned defendant that, if he failed to pay his fines or were
arrested or charged with new similar crimes, it would not be
bound to the original sentencing promise and could impose a
prison term up to 1⅓ to 4 years. At the July 2016
sentencing, the court placed on the record the history of
this matter since defendant's July 2015 guilty plea and
the fact that defendant had again been arrested in late March
2016 for AUO in the first degree. The court thereafter
sentenced defendant to an enhanced prison term of 1 to 3
years, and defendant now appeals.
affirm. Defendant argues that County Court failed to conduct
a sufficient inquiry before imposing an enhanced sentence
(see People v Outley, 80 N.Y.2d 702, 713 ).
However, at sentencing, after the court reviewed the history
of this matter since defendant's guilty plea, which
defense counsel conceded, the court advised defendant on the
record that it intended to impose an enhanced sentence
. Defendant never objected to the
enhanced sentence during the sentencing proceeding or
requested further inquiry, and did not move to withdraw his
guilty plea and, thus, this claim is unpreserved for our
review (see People v Lopez, 157 A.D.3d 1163,
1163-1164 ; People v Rushlow, 137 A.D.3d 1482,
1483 ; cf. People v Turner, 158 A.D.3d 892,
893 ). Were we to review this issue despite the lack of
preservation, we would find that the court clearly advised
defendant of the conditions that he must abide by or risk
enhancement (see People v Lester, 141 A.D.3d 951,
954 , lv denied 28 N.Y.3d 1185');">28 N.Y.3d 1185 ; cf.
People v Rushlow, 137 A.D.3d at 1483-1484; People v
Tole, 119 A.D.3d 982, 984 ). Further, the court
conducted a sufficient inquiry at several appearances during
which it considered the accusatory instruments and ongoing
arguments of counsel, all of which established that an
enhanced sentence was warranted (see People v
Albergotti, 17 N.Y.3d 748, 750 ; People v
Driscoll, 131 A.D.3d 766, 767 , lv denied
27 N.Y.3d 996');">27 N.Y.3d 996 ).
unpersuaded by defendant's further contention that the
enhanced sentence is harsh and excessive . The record reflects
that defendant has an extensive history of driving while his
license is suspended and, following his guilty plea,
frustrated County Court's repeated efforts to impose the
agreed-upon or a lesser sentence. Under these circumstances,
we find no abuse of discretion or extraordinary circumstances
warranting a reduction of the sentence in the interest of
justice (see People v Slamp, 145 A.D.3d 1320, 1321
P.J., McCarthy, Clark, Aarons and Rumsey, JJ., concur.
that the judgment is affirmed.
 County Court had raised the issue of
enhancing the sentence at several prior proceedings.
 At sentencing, the People indicated that
they would move to dismiss the unrelated postplea indictment
handed up in January 2016 and other pending charges provided
that County Court imposed the enhanced 1 to 3-year prison
sentence on this guilty plea. Also, although defendant was
released to parole supervision in July 2017, his challenge to
the sentence as harsh and excessive is not moot given that he
is still under parole supervision until his sentence is