State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 28, 2016 106958
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
JUSTIN ELMENDORF,
Appellant.
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Calendar Date: May 23, 2016
Before: Garry, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.
__________
Andrew Kossover, Public Defender, Kingston (Michael K.
Gould of counsel), for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.
__________
Garry, J.P.
Appeal from a judgment of the County Court of Ulster County
(Williams, J.), rendered June 10, 2014, convicting defendant upon
his plea of guilty of the crime of burglary in the first degree.
Defendant waived indictment and pleaded guilty to burglary
in the first degree as charged in a superior court information,
and also waived his right to appeal. Under the terms of the plea
agreement, he was to be sentenced as a second felony offender to
12 years in prison, to be followed by five years of postrelease
supervision. In the course of the subsequent sentencing
proceeding, as County Court was in the process of pronouncing
sentence in accord with the terms of the plea agreement,
defendant became belligerent and made disrespectful remarks to
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the court. The court responded by threatening defendant with
contempt sanctions, and defendant then made threats of violence
against the court. As a result, the court refused to abide by
the plea agreement, gave defendant the option of withdrawing his
plea or being sentenced without any promise as to the sentence
that would be imposed, and granted defense counsel's request for
an adjournment. Upon resumption of the proceedings, the court
advised defendant of the maximum potential sentence of 25 years
and reiterated defendant's options. Thereafter, having consulted
with counsel, defendant elected to proceed to sentencing. The
court sentenced defendant to 15 years in prison, to be followed
by five years of postrelease supervision. Defendant appeals.
Defendant's sole contention on appeal is that the sentence
imposed was harsh and excessive. Initially, this claim is not
foreclosed by defendant's appeal waiver given that the sentence
ultimately imposed differed from that which was contemplated at
the time the waiver was executed (see People v Stevens, 41 AD3d
1030, 1031 [2007]). On the merits, we find no abuse of
discretion or extraordinary circumstances warranting a
modification of the sentence, particularly in light of
defendant's criminal history and the evidence that he would
commit additional crimes in the future (see People v Girard, 111
AD3d 1153, 1154 [2013], lv denied 23 NY3d 1036 [2014]).
To the extent that defendant's argument may be read to
suggest that his sentence was illegal, we disagree. A sentencing
court has the inherent authority to reconsider its intermediate
sentencing determination, provided such authority is exercised
during the same court proceeding and prior to the commencement of
the sentence (see CPL 430.10; People v Chunn, 186 AD2d 262, 262
[1992]; Matter of Cedar, 240 App Div 182, 186 [1934], affd sub
nom. Matter of Cedar v Judges of Ct. of Gen. Sessions, 265 NY 620
[1934]; see also People v Rauf, 90 AD3d 422, 422 [2011], lv
denied 18 NY3d 927 [2012]; People v Wheeler, 32 AD3d 1107, 1107
[2006]). At the time of defendant's outburst, the proceedings
had not yet terminated nor had the sentence commenced. It is
well established that "[a] sentencing promise made in conjunction
with a plea is conditioned upon it[] being lawful and appropriate
in light of the subsequent presentence report or information
obtained from other reliable sources" (People v Haslow, 20 AD3d
-3- 106958
680, 681 [2005] [internal quotation marks and citations omitted],
lv denied 5 NY3d 828 [2005]). Based upon defendant's inability
to conduct himself appropriately before County Court, and his
stated intention to commit additional serious crimes, it was well
within the court's authority to reconsider its initial approval
of the proposed sentence. Notably, the court appropriately
offered defendant the opportunity to either withdraw his plea or
to be sentenced without the benefit of a sentencing commitment
(see People v Wilson, 69 AD3d 970, 971 [2010]; People v Brunelle,
47 AD3d 1067, 1067 [2008], lv denied 11 NY3d 786 [2008]; People v
Benjamin, 181 AD2d 1059, 1059 [1992]).
Egan Jr., Lynch, Devine and Mulvey, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court