Calendar Date: April 24, 2017
Scott Walling, Schenectady, for appellant.
David Soares, District Attorney, Albany (Emily A. Schultz of
counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (McDonough, J.),
rendered May 14, 2015 in Albany County, convicting defendant
upon his plea of guilty of the crime of criminal possession
of a controlled substance in the fourth degree.
satisfaction of a two-count indictment, defendant pleaded
guilty to criminal possession of a controlled substance in
the fourth degree and he waived his right to appeal, both
orally and in writing. Under the terms of the plea agreement,
he was to be sentenced as a second felony offender to
4½ years in prison, to be followed by three years of
postrelease supervision. During the plea proceedings, Supreme
Court administered a Parker admonishment advising
defendant that the plea agreement included the condition that
he not be arrested prior to sentencing and
if he were, it would not be bound to impose the agreed-upon
sentence. Prior to sentencing, Supreme Court became aware
that defendant had been arrested and jailed for criminal sale
of a controlled substance in connection with an incident that
occurred before he entered his guilty plea and that,
thereafter, he was also indicted on another charge of
criminal sale of controlled substance for an incident that
occurred after he entered his guilty plea. As a result of the
charge based on the drug sale occurring after defendant
entered his guilty plea, the court informed him that it was
not obligated to abide by the sentencing promise and imposed
an enhanced sentence of seven years in prison, followed by
three years of postrelease supervision. Defendant now
first to defendant's challenge to the enhancement of the
sentence, we note that "[a] court may enhance an
agreed-upon sentence after it is established that the
defendant violated a condition of the plea agreement"
(People v McDermott, 68 A.D.3d 1453, 1453 ;
see People v Davis, 30 A.D.3d 893, 894 ,
lv denied 7 N.Y.3d 847');">7 N.Y.3d 847 ). Here, Supreme Court
enhanced the sentence based on the charge of criminal sale of
a controlled substance that was filed against defendant after
he entered his guilty plea. Defendant contends that, inasmuch
as this charge did not result in his physical arrest, the
conditions of the plea agreement were not violated and
Supreme Court should have afforded him the opportunity to
withdraw his plea before imposing an enhanced sentence. We
find this argument to be unpersuasive. As is evident from the
record, the no-arrest condition was imposed by the court to
discourage defendant from committing additional crimes
subsequent to the entry of his guilty plea while he was out
on bail pending sentencing. Defendant, however, was arrested
during this time for a crime that he committed prior to
entering his guilty plea and he was incarcerated as a result.
Defendant's incarceration obviated the need to physically
detain him on the charge of criminal sale of a controlled
substance that arose from his post-plea criminal conduct.
This criminal conduct, which resulted in an indictment, was
implicitly proscribed by the conditions of the plea agreement
and provided a legitimate basis for enhancement of the
sentence. Accordingly, Supreme Court did not err in imposing
an enhanced sentence under the circumstances presented
(see People v Therrien, 301 A.D.2d 751, 752 ,
lv denied 99 N.Y.2d 633');">99 N.Y.2d 633 ; see also People
v Davis, 30 A.D.3d at 753).
also challenges the severity of the enhanced sentence.
Initially, we note that he is not precluded by his waiver of
the right to appeal from raising this claim inasmuch as we
find that the waiver is invalid due to the absence of any
indication in the record that defendant was advised of and
understood the nature of the rights that he was waiving or
was informed that the right to appeal was separate and
distinct from the rights forfeited by a guilty plea (see
People v Lopez, 6 N.Y.3d 248, 256-257 ; People
v Henry, 133 A.D.3d 1085, 1085-1086 ; People v
Anderson, 129 A.D.3d 1385, 1385 , lvs
denied 26 N.Y.3d 965');">26 N.Y.3d 965 ). Turning to the merits, we
are not persuaded that the enhanced sentence was either harsh
or excessive given defendant's criminal history, which
includes a prior violent felony, and his continued
participation in drug-related activity after entering his
guilty plea. Accordingly, we find no extraordinary
circumstances nor any abuse of discretion warranting a
reduction of the enhanced sentence in the interest of justice
(see People v Anderson, 129 A.D.3d at 1385; see
also People v White, 24 A.D.3d 817, 817 ).
McCarthy, J.P., Egan Jr., Devine ...