State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 107211 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

MARCUS E. MITCHELL,

Appellant.

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Calendar Date: October 13, 2016

Before: Garry, J.P., Egan Jr., Rose, Devine and Mulvey, JJ.

__________

Michael C. Ross, Bloomingburg, for appellant.

Paul Czajka, District Attorney, Hudson (Trevor O. Flike of

counsel), for respondent.

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Egan Jr., J.

Appeal from a judgment of the County Court of Columbia

County (Koweek, J.), rendered June 19, 2013, convicting defendant

upon his plea of guilty of the crimes of criminal mischief in the

second degree, resisting arrest and unlawfully fleeing a police

officer in a motor vehicle in the third degree.

In May 2013, defendant pleaded guilty to criminal mischief

in the second degree, resisting arrest and unlawfully fleeing a

police officer in a motor vehicle in the third degree as charged

in an indictment. The plea was entered pursuant to a 10-page

written agreement signed by defendant in November 2012, and

reaffirmed during the plea allocution, in which the People agreed

to recommend that defendant receive a sentence of 2 to 4 years in
-2- 107211 

prison, with court-ordered Willard treatment.1 The agreement,

which included a waiver of appeal, also satisfied other pending

charges. As provided in the agreement and reiterated during the

plea allocution, County Court made no sentencing promise and

advised defendant that it could impose a prison sentence of up to

31⁄2 to 7 years. Defendant failed to appear for sentencing and was

sentenced in absentia, as a previously admitted second felony

offender, to an aggregate prison term of 31⁄2 to 7 years and

ordered to pay restitution. Defendant now appeals.

We affirm. Initially, we agree with defendant that his

waiver of appeal was not knowing, voluntary and intelligent, as

neither County Court nor the written plea agreement adequately

informed him that his appeal rights were separate and distinct

from those trial-related rights automatically forfeited by his

guilty plea (see People v Lopez, 6 NY3d 248, 256 [2006]; People v

Larock, 139 AD3d 1241, 1242 [2016], lv denied 28 NY3d 932

[2016]). In any event, the written agreement expressly reserved

defendant's right to appeal the sentence if the court imposed a

sentence harsher than the negotiated sentence, which is the case

here. 

Defendant further contends that County Court abused its

discretion in imposing what he characterizes as an "enhanced"

sentence due to his failure to appear at sentencing. We are

unpersuaded, as the record reflects that the court advised

defendant, at the time of the plea, that while the People would

recommend a sentence of 2 to 4 years, the court was not making a

sentencing commitment and could impose the maximum prison

sentence of 31⁄2 to 7 years, and warned him that it could sentence

him in his absence if he failed to appear. The written

agreement, which defendant confirmed he had reviewed with his

attorney, also advised him that he could be sentenced in

absentia. Thus, the sentence was not "enhanced" as the court

retained the discretion to impose the maximum sentence (compare

1 The written agreement was signed earlier pursuant to the

People's promise to recommend a lesser sentence, which was

renegotiated after it was disclosed that defendant had felony

convictions in Florida.
-3- 107211 

People v Denegar, 130 AD3d 1140, 1141 [2015]); by failing to

appear despite warnings about the failure to appear, defendant

forfeited his right to be present at sentencing (see People v

Corley, 67 NY2d 105, 109-110 [1986]; People v Klein, 124 AD3d

1143, 1143 [2015]). Further, County Court took into

consideration the People's representation that, after the plea,

defendant had been arrested for a new crime and that local police

had been "actively looking" for him in the five weeks since, but

were unable to locate him. Defense counsel did not dispute these

facts. Under these circumstances, we do not find that the court

abused its discretion in sentencing defendant in absentia. 

Finally, given that the charges stem from defendant's

intentional destruction of a police car, as well as his criminal

history and the fact that this plea also satisfied other pending

charges, we cannot conclude that the sentence imposed was harsh

or excessive (see generally People v Launder, 132 AD3d 1151,

1154-1155 [2015], lv denied 27 NY3d 1153 [2016]). Defendant's

remaining claims have been reviewed and determined to lack merit.

Garry, J.P., Rose, Devine and Mulvey, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court