Opinion
2021–08275 S.C.I. No. 176/21
03-08-2023
The PEOPLE, etc., respondent, v. Brian DURKIN, appellant.
Alex Smith, Middletown, NY, for appellant. David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), for respondent.
Alex Smith, Middletown, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), for respondent.
BETSY BARROS, J.P., CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, HELEN VOUTSINAS, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (Hyun Chin Kim, J.), rendered October 28, 2021, convicting him of attempted criminal sexual act in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
On June 7, 2021, the defendant entered a plea of guilty to attempted criminal sexual act in the first degree, a class C felony, in exchange for a promised sentence. As a condition of the County Court's promised sentence, the defendant was required to answer the questions posed by the probation department in a truthful manner consistent with what he told the court during the plea proceeding. Thereafter, based on statements made by the defendant during his interview with the probation department, the court imposed an enhanced sentence.
The defendant's contention that the County Court should have held a hearing prior to imposing an enhanced sentence is unpreserved for appellate review, since the defendant neither requested such a hearing nor moved to withdraw his plea on this ground (see People v. Goode–Ford, 205 A.D.3d 1051, 166 N.Y.S.3d 904 ; People v. Shealy, 195 A.D.3d 1047, 1048, 146 N.Y.S.3d 797 ). In any event, "[a]n enhanced sentence may be imposed on a defendant who, in violation of an express condition of a plea agreement, has failed to truthfully answer questions during a probation department interview" ( People v. Guzman–Hernandez, 135 A.D.3d 957, 957, 23 N.Y.S.3d 582 ; see People v. Hicks, 98 N.Y.2d 185, 189, 746 N.Y.S.2d 441, 774 N.E.2d 205 ). Under the circumstances of this case, the court's inquiry was sufficient to determine that the defendant had violated a condition of his plea agreement (see People v. Shealy, 195 A.D.3d at 1048, 146 N.Y.S.3d 797 ; People v. Foster, 153 A.D.3d 1429, 1429, 60 N.Y.S.3d 692 ).
Accordingly, the County Court providently exercised its discretion in imposing the enhanced sentence (see People v. Shealy, 195 A.D.3d at 1049, 146 N.Y.S.3d 797 ; People v. Takie, 172 A.D.3d 1249, 1250, 101 N.Y.S.3d 141 ).
BARROS, J.P., CHAMBERS, ZAYAS and VOUTSINAS, JJ., concur.