Howard K. Broder, for Appellant.
Alan Cruikshank, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
Supreme Court promised defendant that it would sentence him to 2 1/2 to 5 years and temporarily release him on his own recognizance in exchange for his guilty plea to attempted burglary in the first degree, provided that he (1) return to court for sentencing in six weeks, (2) not get re-arrested during that six week period while the probation department conducted its pre-sentence investigation, and (3) cooperate with the probation department in that investigation. Supreme Court advised defendant that in the event any one of these three conditions was violated, the court would not be bound by the plea agreement and could sentence him to 7 1/2 to 15 years. Defendant failed to return to court on the scheduled sentencing date and a bench warrant was issued. When defendant was brought into court on the warrant, the People informed the court that defendant had been arrested on two felonies during his pre-sentence release. Supreme Court ordered defendant held without bail pending sentencing. Defendant subsequently moved to withdraw his guilty plea. Supreme Court denied the motion, noting that the colloquy regarding the plea agreement was clear. Supreme Court imposed an enhanced sentence of 3 1/2 to 7 years.
Defendant's failure to appear in court on the scheduled sentencing date constituted a violation of the plea agreement. Therefore, Supreme Court was no longer bound by the plea promise and could properly impose an enhanced sentence (see, People v Avery, 85 NY2d 503, 507; People v Seaberg, 74 NY2d 1, 7; People v Selikoff, 35 NY2d 227, 238 cert denied 419 US 1122). Under these facts, there was no need for Supreme Court to afford defendant an opportunity to challenge the foundation of his post-plea arrests in accordance with People v Outley, 80 NY2d 702, 713 (habeas corpus denied sub nom. Maitta v Irvin, 1995 WL 505558), based on the independent, legally valid basis for the enhanced sentence.
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Order affirmed, in a memorandum. Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.