Opinion
2013-03479, Ind. No. 3099/10.
10-07-2015
The PEOPLE, etc., respondent, v. Francisco SAAVERDA, appellant.
Lynn W.L. Fahey, New York, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jeanette Lifschitz, and Aurora Alvarez–Calderon of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jeanette Lifschitz, and Aurora Alvarez–Calderon of counsel), for respondent.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Queens County (Modica, J.), rendered March 19, 2013, convicting him of burglary in the second degree, upon his plea of guilty, and sentencing him to a determinate term of imprisonment of 15 years, followed by a period of postrelease supervision.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed from a determinate term of imprisonment of 15 years to a determinate term of imprisonment of 8 years; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, he was not deprived of his right to due process at a hearing that was conducted to determine whether he violated a condition of the plea agreement (see People v. Butler, 49 A.D.3d 894, 895, 854 N.Y.S.2d 506 ; see also People v. Cousar, 128 A.D.3d 716, 9 N.Y.S.3d 96 ; People v. Youmans, 106 A.D.3d 1036, 965 N.Y.S.2d 381 ; People v. Arrington, 94 A.D.3d 903, 941 N.Y.S.2d 877 ; People v. Miles, 268 A.D.2d 489, 703 N.Y.S.2d 491 ). Here, the sentencing court conducted an inquiry sufficient to conclude that a violation of the plea agreement had occurred and, therefore, the court satisfied the requirements of due process (see People v. Valencia, 3 N.Y.3d 714, 715, 786 N.Y.S.2d 374, 819 N.E.2d 990 ; People v. Outley, 80 N.Y.2d 702, 594 N.Y.S.2d 683, 610 N.E.2d 356 ; People v. Arrington, 94 A.D.3d 903, 941 N.Y.S.2d 877 ).
Under the circumstances of this case, the defendant's purported waiver of his right to appeal does not extend to the imposition of the enhanced sentence that was imposed upon him (see People v. Pianaforte, 126 A.D.3d 815, 816, 5 N.Y.S.3d 281 ; see also People v. Maracle, 19 N.Y.3d 925, 950 N.Y.S.2d 498, 973 N.E.2d 1272 ). Thus, the waiver does not preclude review of his excessive sentence claim.
The enhanced sentence imposed was excessive to the extent indicated herein.
LEVENTHAL, J.P., CHAMBERS, AUSTIN and MILLER, JJ., concur.