Opinion
2013-04-4
The PEOPLE of the State of New York, Respondent, v. Christopher DeJESUS, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.
TOM, J.P., ANDRIAS, SAXE, ABDUS–SALAAM, GISCHE, JJ.
Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered January 26, 2010, as amended March 22, 2010, convicting defendant, upon his plea of guilty, of assault in the first and second degrees and criminal possession of a weapon in the fourth degree, and sentencing him, as a second felony offender, to an aggregate term of four years, unanimously affirmed.
Defendant made a valid waiver of his right to appeal. In a thorough colloquy, the court carefully separated the right to appeal from the rights automatically given up by a guilty plea ( see People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).
Regardless of whether defendant made a valid waiver of his right to appeal, and regardless of whether the waiver applied to post-plea sentencing enhancement issues, defendant's claim that the court improperly enhanced his bargained-for sentence without sufficient inquiry into the validity of his post-plea arrests is unpreserved since defendant neither requested a hearing nor moved to withdraw his plea ( see e.g. People v. Malaj, 69 A.D.3d 487, 894 N.Y.S.2d 31 [1st Dept. 2010], lv. denied15 N.Y.3d 776, 907 N.Y.S.2d 464, 933 N.E.2d 1057 [2010];People v. Carrillo, 2 A.D.3d 260, 768 N.Y.S.2d 326 [1st Dept. 2003], lv. denied2 N.Y.3d 797, 781 N.Y.S.2d 296, 814 N.E.2d 468 [2004] ), and we decline to review it in the interest of justice. As an alternate holding, we find that the court conducted a sufficient inquiry and properly imposed an enhanced sentence ( see People v. Outley, 80 N.Y.2d 702, 713–714, 594 N.Y.S.2d 683, 610 N.E.2d 356 [1993] ). Since defendant did not challenge the validity of his post-plea arrests or deny his involvement in the underlying crimes, the court was under no obligation to conduct an inquiry into the validity of these arrests ( see e.g. People v. Pinkston, 287 A.D.2d 294, 731 N.Y.S.2d 367 [1st Dept. 2001], lv. denied97 N.Y.2d 707, 739 N.Y.S.2d 108, 765 N.E.2d 311 [2002] ). There were no disputed factual issues that required a hearing as a matter of due process ( see People v. Valencia, 3 N.Y.3d 714, 786 N.Y.S.2d 374, 819 N.E.2d 990 [2004];compare Torres v. Berbary, 340 F.3d 63 [2d Cir.2003] ).
Regardless of whether defendant validly waived his right to appeal, we perceive no basis for reducing the sentence.