Opinion
02-09-2024
The PEOPLE of the State of New York, Respondent, v. Charles ROBERTO, Defendant-Appellant.
DIPASQUALE & CARNEY, LLP, BUFFALO (JASON R. DIPASQUALE OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.), rendered July 7, 2021. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, attempted criminal possession of a weapon in the second degree and criminal contempt in the first degree.
DIPASQUALE & CARNEY, LLP, BUFFALO (JASON R. DIPASQUALE OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, BANNISTER, OGDEN, AND DELCONTE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a plea of guilty, of criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]), attempted criminal possession of a weapon in the second degree (§§ 110.00, 265.03 [3]), and criminal contempt in the first degree (§ 215.51 [b] [ii]). [1, 2] Defendant’s challenge to the factual sufficiency of the plea allocution "is foreclosed by [his] valid waiver of the right to appeal" and, further, defendant "failed to preserve that challenge for our review by failing to move to withdraw the plea or to vacate the judgment of conviction" (People v. Peter, 141 A.D.3d 1115, 1116, 33 N.Y.S.3d 918 [4th Dept. 2016]; see People v. Hicks, 128 A.D.3d 1358,1359, 8 N.Y.S.3d 748 [4th Dept. 2015], lv denied 27 N.Y.3d 999, 38 N.Y.S.3d 109, 59 N.E.3d 1221 [2016]). In any event, the allocution was legally sufficient inasmuch as " ‘nothing that defendant said or failed to say in [his] allocution negated any element of the of-fense[s] to which [he] pleaded … or otherwise called into question [his] admitted guilt’ " (People v. Smith, 39 A.D.3d 1228, 1228, 833 N.Y.S.2d 796 [4th Dept. 2007], lv denied 9 N.Y.3d 881, 842 N.Y.S.2d 793, 874 N.E.2d 760 [2007], reconsideration denied 9 N.Y.3d 993, 848 N.Y.S.2d 611, 878 N.E.2d 1027 [2007]).
[3, 4] While defendant’s contention that Supreme Court erred in imposing an enhanced sentence based upon his postplea conduct survives his valid waiver of the right to appeal (see People v. O'Brien, 98 A.D.3d 1264, 1264, 951 N.Y.S.2d 291 [4th Dept. 2012], lv denied 20 N.Y.3d 1063, 962 NXS.2d 614, 985 N.E.2d 924 [2013]; cf. People v. Sampson, 149 A.D.3d 1486, 1487-1488, 52 N.Y.S.3d 767 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017]), the contention "is not preserved for our review because defendant did not object to the enhanced sentence, nor did he move to withdraw the plea or to vacate the judgment of conviction" (People v. Sprague, 82 A.D.3d 1649, 1649, 919 N.Y.S.2d 433 [4th Dept. 2011], lv denied 17 N.Y.3d 801, 929 N.Y.S.2d 110, 952 N.E.2d 1105 [2011]). In any event, because "defendant violate[d] … condition[s] of the plea agreement" by, inter alia, admittedly attempting to contact an individual in violation of an order of protection, "the court [was] no longer bound by the agreement and [was] free to impose a greater sentence" (id. [internal quotation marks omitted]) without the need "to afford defendant an opportunity to challenge the foundation of his postplea arrest[ ]" (People v. Figgins, 87 N.Y.2d 840, 841, 637 N.Y.S.2d 684, 661 N.E.2d 156 [1995]; see People v. Outley, 80 N.Y.2d 702, 712-713, 594 N.Y.S.2d 683, 610 N.E.2d 356 [1993]).
[5] Because the court advised defendant of the maximum sentence that could be imposed upon a violation of the plea agreement, "the waiver by defendant of the right to appeal encompasses [his] further contention that the enhanced sentence is unduly harsh [and] severe" (People v. May, 169 A.D.3d 1365, 1365, 91 N.Y.S.3d 744 [4th Dept. 2019] [internal quotation marks omitted]).
Finally, we have considered defendant’s remaining contentions regarding jurisdiction and conclude that none warrants reversal or modification of the judgment.