Opinion
2013-05-9
The PEOPLE of the State of New York, Respondent, v. Robert E. STRAIGHT, Appellant.
Eric K. Schillinger, East Greenbush, for appellant. Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), for respondent.
Eric K. Schillinger, East Greenbush, for appellant. Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), for respondent.
Before: PETERS, P.J., ROSE, STEIN and EGAN JR., JJ.
PETERS, P.J.
Appeal from a judgment of the County Court of Chenango County (Sullivan, J.), rendered February 25, 2011, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.
Defendant was charged with burglary in the third degree, criminal possession of stolen property in the third degree, grand larceny in the third degree and petit larceny stemming from allegations that he unlawfully entered and stole property from a convenience store in the Town of Norwich, Chenango County. After County Court denied his motion to dismiss the indictment on the ground that the People failed to provide reasonable notice of the grand jury proceeding, defendant pleaded guilty to burglary in the third degree in full satisfaction of the indictment. Under the terms of the plea agreement, he was to receive a prison sentence of 2 1/2 to 5 years, to run concurrently with a prison sentence of 1 1/2 to 3 years to be imposed on an unrelated charge, waive his right to appeal and pay restitution in the amount of $1,501.96. During the plea proceeding, County Court granted defendant's request for a one-week furlough prior to sentencing, cautioning him that if he did “anything ... inappropriate in terms of violating the law” during that time, his sentence could be enhanced. Defendant was thereafter arrested and charged with burglary in the third degree, a crime to which he confessed. As a result, County Court imposed an enhanced sentence of 3 1/2 to 7 years in prison to run consecutively with a prison term of 2 to 4 years on the unrelated charge. Defendant now appeals.
Defendant entered this guilty plea simultaneously with his plea of guilty to the unrelated charge, and is appealing from the judgment convicting him of such unrelated charge in a separate appeal before this Court ( People v. Straight, 106 A.D.3d 1192, ––– N.Y.S.2d –––– [appeal No. 104089] [decided herewith] ).
In light of County Court's imposition of the enhanced sentence, defendant was no longer required to waive his right to appeal.
By pleading guilty, defendant forfeited his claim that his right to testify before the grand jury was violated ( see People v. Johnson, 97 A.D.3d 990, 991, 947 N.Y.S.2d 922 [2012];People v. Dennis, 39 A.D.3d 1028, 1029, 834 N.Y.S.2d 380 [2007];People v. Steed, 17 A.D.3d 928, 929, 793 N.Y.S.2d 620 [2005],lv. denied5 N.Y.3d 770, 801 N.Y.S.2d 264, 834 N.E.2d 1274 [2005];People v. Kelone, 292 A.D.2d 640, 641, 740 N.Y.S.2d 462 [2002],lv. denied98 N.Y.2d 677, 746 N.Y.S.2d 466, 774 N.E.2d 231 [2002] ). Defendant's claim of ineffective assistance of counsel also fails to survive his guilty plea, as he does not allege nor does the record reveal that his plea was impacted in any way by counsel's allegedly deficient performance ( see People v. Parilla, 8 N.Y.3d 654, 660, 838 N.Y.S.2d 824, 870 N.E.2d 142 [2007];People v. Petgen, 55 N.Y.2d 529, 534–535, 450 N.Y.S.2d 299, 435 N.E.2d 669 [1982];People v. Heier, 73 A.D.3d 1392, 1393, 900 N.Y.S.2d 921 [2010],lv. denied15 N.Y.3d 805, 908 N.Y.S.2d 165, 934 N.E.2d 899 [2010] ).
Defendant's contention that County Court impermissibly enhanced his sentence, which was preserved by his objection at sentencing ( see People v. Davis, 72 A.D.3d 1292, 1293, 898 N.Y.S.2d 721 [2010];see generally People v. DePalma, 99 A.D.3d 1116, 1117, 952 N.Y.S.2d 316 [2012],lv. denied20 N.Y.3d 1010, 960 N.Y.S.2d 353, 984 N.E.2d 328 [2013] ), is lacking in merit. “An agreed-upon sentence may be enhanced if it is appropriately established that the defendant has violated the conditions of the plea agreement” ( People v. Davis, 30 A.D.3d 893, 894, 817 N.Y.S.2d 752 [2006],lv. denied7 N.Y.3d 847, 823 N.Y.S.2d 776, 857 N.E.2d 71 [2006] [citations omitted]; accord People v. Bove, 64 A.D.3d 812, 812–813, 882 N.Y.S.2d 352 [2009],lv. denied13 N.Y.3d 858, 891 N.Y.S.2d 692, 920 N.E.2d 97 [2009];see People v. McDermott, 68 A.D.3d 1453, 1453, 891 N.Y.S.2d 515 [2009] ). Here, despite defendant's assertions to the contrary, County Court's admonishment during the plea proceeding was neither vague nor unclear. While the court advised defendant of certain specific conditions of his release related to the consumption and possession of alcohol and drugs, it also explicitly warned him that he could be subject to an enhanced sentence if he did anything that violates the law ( see People v. Whaley, 74 A.D.3d 1641, 1642, 905 N.Y.S.2d 675 [2010],lv. denied 15 N.Y.3d 856, 909 N.Y.S.2d 34, 935 N.E.2d 826 [2010];People v. Ayen, 55 A.D.3d 1305, 1306, 864 N.Y.S.2d 591 [2008];People v. Barilla, 289 A.D.2d 876, 877, 734 N.Y.S.2d 517 [2001] ). Furthermore, when he appeared for sentencing, defendant did not deny that he had committed the new offense, and the felony complaint, police report and defendant's written confession provided County Court with adequate assurance that there was a legitimate basis for defendant's arrest and sufficiently established that he had violated the law ( see People v. Valencia, 3 N.Y.3d 714, 715–716, 786 N.Y.S.2d 374, 819 N.E.2d 990 [2004];People v. Hunter, 98 A.D.3d 1189, 1190, 951 N.Y.S.2d 275 [2012],lv. denied20 N.Y.3d 1012, 960 N.Y.S.2d 355, 984 N.E.2d 330 [2013];People v. Delgado, 45 A.D.3d 496, 496, 846 N.Y.S.2d 166 [2007],lv. denied9 N.Y.3d 1032, 852 N.Y.S.2d 18, 881 N.E.2d 1205 [2008];People v. Davis, 30 A.D.3d at 895, 817 N.Y.S.2d 752). Thus, County Court's imposition of an enhanced sentence was appropriate.
ORDERED that the judgment is affirmed.