Opinion
02-09-2024
The PEOPLE of the State of New York, Respondent, v. Andrew S. FISHER, Defendant-Appellant.
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Steuben, County Court (Patrick F. McAllister, A.J.), rendered December 5, 2022. The judgment convicted defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the fourth degree.
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., BANNISTER, GREENWOOD, AND KEANE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
[1, 2] Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted criminal possession of a controlled substance in the fourth degree (Penal Law §§ 110.00, 220.09 [2]). Defendant contends that County Court erred in imposing an enhanced sentence without holding a hearing or otherwise making a sufficient inquiry regarding his alleged violation of the conditions of the plea agreement. That contention is not preserved for our review inasmuch as defendant " ‘failed to request such a hearing and did not move to withdraw his plea on that ground’ " (People v. Scott, 200 A.D.3d 1729, 1730, 155 N.Y.S.3d 848 [4th Dept. 2021]). In any event, the contention lacks merit. Under the circumstances, the court was not required to conduct a hearing, and it provided "[b]oth defendant and his counsel … ample opportunity to refute the court’s assertions that defendant had violated the plea terms" (People v. Albergotti, 17 N.Y.3d 748, 750, 929 N.Y.S.2d 18, 952 N.E.2d 1010 [2011]; see generally People v. Semple, 23 A.D.3d 1058, 1059-1060, 804 N.Y.S.2d 192 [4th Dept. 2005], lv denied 6 N.Y.3d 852, 816 N.Y.S.2d 758, 849 N.E.2d 981 [2006]), specifically by his failure to appear at sentencing and failure to report to probation as directed by the court (see People v. Baker, 204 A.D.3d 1471, 1472, 166 N.Y.S.3d 816 [4th Dept. 2022], lv denied 38 N.Y.3d 1069, 171 N.Y.S.3d 462, 191 N.E.3d 414 [2022]; People v. Winship, 26 A.D.3d 768, 768-769, 809 N.Y.S.2d 722 [4th Dept. 2006], lv denied 6 N.Y.3d 899, 817 N,Y.S.2d 634, 850 N.E.2d 681 [2006]; see also Albergotti, 17 N.Y.3d at 749-750, 929 N.Y.S.2d 18, 952 N.E.2d 1010).