Calendar Date: April 30, 2018Before: McCarthy, J.P., Lynch, Devine, Clark and Pritzker, JJ.__________Danielle Neroni Reilly, Albany, for appellant.Robert M. Carney, District Attorney, Schenectady (Tracey A.Brunecz of counsel), for respondent.__________Pritzker, J.Appeal, by permission, from an order of the County Court ofSchenectady County (Sypniewski, J.), entered May 3, 2017, whichdenied defendant’s motion pursuant to CPL 440.10 to vacate thejudgment convicting him of the crime of driving whileintoxicated, without a hearing.In 1995, defendant waived indictment and pleaded guilty tofelony driving while intoxicated as charged in a superior courtinformation. Pursuant to the plea agreement, which alsosatisfied another pending charge, defendant was promised asentence of six months in jail followed by five years ofprobation. County Court (Feldstein, J.) continued defendant’srelease on bail pending sentencing and advised him that, if hefailed to appear for the scheduled sentencing, he could besentenced in his absence. Sentencing was thereafter adjourned atdefendant’s request and, when he failed to appear at therescheduled sentencing date in May 1995, a bench warrant wasissued. When defendant again failed to appear for the nextscheduled sentencing date on July 7, 1995, County Court (Scarano,J.) sentenced defendant in absentia to an enhanced prison term of1 to 3 years. Defendant did not appeal and remained at largeuntil he was arrested on the bench warrant apparently in early2017. Defendant thereafter moved to vacate the judgment ofconviction pursuant to CPL 440.10 (1) (h), claiming, among otherthings, that his guilty plea was not knowing, voluntary andintelligent and that the enhanced sentence was not lawfullyimposed.1 The People opposed the motion. County Court(Sypniewski, J.) denied the motion and remanded defendant on the1995 sentence. Defendant now appeals, by permission, from thedenial of his CPL article 440 motion.We affirm. CPL 440.10 (2) (c) provides that a motion tovacate a judgment of conviction must be denied where, “[a]lthoughsufficient facts appear on the record of the proceedingsunderlying the judgment to have permitted, upon appeal from suchjudgment, adequate review of the ground or issue raised upon themotion, no such appellate review or determination occurred owingto the defendant’s unjustifiable failure to take or perfect anappeal during the prescribed period” (CPL 440.10 [2] [c]). Inmoving to vacate, defendant challenged his guilty plea asinvoluntary on the ground that County Court (Feldstein, J.) didnot adequately advise him of the consequences of failing toappear for sentencing or that he could be sentenced to a prisonterm in absentia. However, “sufficient facts appear on therecord” to have permitted review of this issue on direct appeal(CPL 440.10 [2] [c]), and defendant offers no legitimatejustification for his failure to appeal from the judgment ofconviction. Consequently, “this issue is . . . not the propersubject of a postverdict motion to vacate” (People v Darrell, 145AD3d 1316, 1320 [2016], lv denied 29 NY3d 1125 [2017]).Moreover, this claim is belied by the record, which reflectsthat, during the plea colloquy, defendant was explicitly advisedof the maximum potential prison sentence that he faced and that,if he failed to appear for sentencing, the court “reserve[d] theright to proceed with sentencing in [his] absence and to upholdany sentence, up to the maximum allowed by the law.” As thisclaim is “contradicted by [the] court record” (CPL 440.30 [4][d]), the motion was providently denied on this basis.Likewise, defendant’s challenge to the adequacy of CountyCourt’s (Scarano, J.) inquiry prior to sentencing him in absentiawas reviewable on direct appeal (see CPL 440.10 [2] [c]) and,further, is contradicted by the record on appeal (see CPL 440.30[4] [d]). To that end, the record establishes that defendant’sright to be present at sentencing (see CPL 380.40 [1]) was waivedby his failure to appear on two scheduled sentencing dates, afterbeing advised during the plea proceedings that, if he failed toappear, he could be sentenced in his absence (see People v Brown,101 AD3d 1267, 1268 [2012], lv denied 21 NY3d 1014 [2013], certdenied ___ US ___, 132 S Ct 938 [2014]; see also People vRossborough, 27 NY3d 485, 488 [2016]). To the extent thatdefendant’s motion is premised upon the argument that the courtfailed to consider all of the appropriate factors beforeproceeding to sentence him in absentia, the record would havepermitted review of this claim on direct appeal (see CPL 440.10[2] [c]; People v Atkins, 154 AD3d 1064, 1065-1068 [2017], lvdismissed 31 NY3d 981 [2018]). After defendant failed to appearat the May 1995 adjourned sentencing, defense counsel sent aletter by registered mail to defendant’s address advising himthat he had missed the sentencing and should contact counselimmediately; counsel received a return receipt indicating thatthe letter had been received, but counsel had not heard fromdefendant since then and was unaware of his whereabouts. In June1995, counsel sent defendant a copy of a letter from the courtindicating that he had to be in court for sentencing, and alsoleft a phone message advising him to contact counsel immediatelyand that sentencing would occur on July 7, 1995. Defendant againfailed to appear on the rescheduled sentencing date, and counselrelayed his efforts to contact defendant and indicated that hehad not heard from him and did not know his whereabouts. CountyCourt concluded that defense counsel had exercised due diligencein repeatedly attempting to locate defendant and proceeded tosentence him in absentia. As the record reflects that the courtinquired into the circumstances of defendant’s failure to appear(see People v Parker, 57 NY2d 136, 142 [1982]; People v Rodman,104 AD3d 1186, 1187 [2013], lv denied 22 NY3d 1202 [2014]; cf.People v Atkins, 154 AD3d at 1067-1068; People v June, 116 AD3d1094, 1095-1096 [2014]), directly contradicting his claim to thecontrary on this motion, the denial of his motion was proper (seeCPL 440.30 [4] [d]).Finally, defendant argues that his conviction should bevacated because defense counsel failed to advise him that hecould be sentenced in absentia to an enhanced prison term, whichconstituted ineffective assistance of counsel. While this claimwas properly raised in a motion to vacate as it relies in part onmatters outside the record that would have been unavailable ondirect appeal (see CPL 440.10 [1] [h]; People v Taylor, 156 AD3d86, 90-92 [2017], lv denied 30 NY3d 1120 [2018]), the motion wasproperly denied as the allegations do not constitute a legalbasis for the motion (see CPL 440.30 [4] [a]). In this regard,the law requires that, “[i]n order to effect a voluntary, knowingand intelligent waiver, the defendant must, at a minimum, beinformed in some manner” of the consequences of failing to appearfor sentencing (People v Parker, 57 NY2d at 141 [emphasis added];accord People v Atkins, 154 AD3d at 1065-1066). Even ifdefendant’s allegation is credited, the record establishes thathe was both apprised by County Court (Feldstein, J.) and awarethat sentencing would proceed in his absence, and there is norequirement that defense counsel be the one who provides thisadvisement.2 Defendant’s contentions addressed to the delay inenforcing his sentence were not raised in his motion to vacateand will not be considered for the first time on appeal. We haveconsidered defendant’s remaining contentions and find no basisupon which to disturb the denial of his motion to vacate.McCarthy, J.P., Lynch, Devine and Clark, JJ., concur.ORDERED that the order is affirmed.ENTER:Robert D. MaybergerClerk of the Court
