Opinion
2016–09632 Ind.No. 1485–15
02-21-2018
The PEOPLE, etc., respondent, v. Daniel ZAPATA, appellant.
Del Atwell, East Hampton, NY, for appellant. Timothy Sini, District Attorney, Riverhead, N.Y. (Caren C. Manzello of counsel), for respondent.
Del Atwell, East Hampton, NY, for appellant.
Timothy Sini, District Attorney, Riverhead, N.Y. (Caren C. Manzello of counsel), for respondent.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the County Court, Suffolk County (Timothy P. Mazzei, J.), rendered July 27, 2016, convicting him of strangulation in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's valid waiver of his right to appeal bars his challenge to the County Court's suppression rulings (see People v. Kemp , 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ; People v. Kane , 151 A.D.3d 751, 55 N.Y.S.3d 445 ). The appeal waiver does not foreclose review of the denial of the defendant's motion to vacate his plea of guilty to the extent that the motion challenged the voluntariness of the plea (see People v. McErlean , 149 A.D.3d 872, 873, 51 N.Y.S.3d 616 ). However, the defendant's unsubstantiated and conclusory allegations are belied by the record and insufficient to warrant vacatur of the defendant's plea of guilty (see People v. Ward , 140 A.D.3d 903, 904, 32 N.Y.S.3d 648 ; People v. Bush , 132 A.D.3d 691, 692, 17 N.Y.S.3d 497 ).
The defendant's waiver of his right to appeal does not bar consideration of whether he violated the conditions of his plea agreement, justifying an enhanced sentence (cf. People v. Perez , 140 A.D.3d 799, 800, 30 N.Y.S.3d 918 ). The defendant did not submit to an interview by the Probation Department and, therefore, violated a condition of the plea agreement, justifying imposition of an enhanced sentence (see People v. Hicks , 98 N.Y.2d 185, 188, 746 N.Y.S.2d 441, 774 N.E.2d 205 ; People v. Foster , 153 A.D.3d 1429, 60 N.Y.S.3d 692 ; People v. Guzman–Hernandez , 135 A.D.3d 957, 23 N.Y.S.3d 582 ).
The County Court granted the defendant's request to withdraw his waiver of the right to appeal with respect to the excessiveness of the enhanced sentence. However, the enhanced sentence imposed was not excessive (see People v. Suitte , 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
RIVERA, J.P., COHEN, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.