Opinion
2014-03-28
The PEOPLE of the State of New York, Respondent, v. ALI O., Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, and VALENTINO, JJ.
MEMORANDUM:
On appeal from an adjudication based upon his plea of guilty of attempted robbery in the third degree (Penal Law §§ 110.00, 160.05), defendant contends that Supreme Court erred in imposing an enhanced sentence without conducting a sufficient inquiry into his alleged violation of the conditions of the plea agreement ( see People v. Outley, 80 N.Y.2d 702, 713, 594 N.Y.S.2d 683, 610 N.E.2d 356). Because defendant “failed to request such a hearing and did not move to withdraw his plea on that ground,” his contention is unpreserved for our review ( People v. Scott, 101 A.D.3d 1773, 1773, 957 N.Y.S.2d 554,lv. denied21 N.Y.3d 1019, 971 N.Y.S.2d 502, 994 N.E.2d 398). In any event, the court was not required to conduct an inquiry because defendant was rearrested prior to sentencing, in violation of the plea agreement, and he did not “deny that he committed the new offense[s] or otherwise challenge the validity of his postplea arrest” ( People v. Mills, 90 A.D.3d 1518, 1519, 934 N.Y.S.2d 890,lv. denied18 N.Y.3d 960, 944 N.Y.S.2d 489, 967 N.E.2d 714).
We agree with defendant that the waiver of the right to appeal does not encompass his challenge to the severity of the sentence because the court, during the plea colloquy, merely advised him that he was waiving his right to appeal from the conviction ( see People v. Maracle, 19 N.Y.3d 925, 927, 950 N.Y.S.2d 498, 973 N.E.2d 1272). We nevertheless reject defendant's contention that the enhanced sentence is unduly harsh and severe. Notably, although the court could have sentenced defendant as an adult because of his violation of the plea agreement, it adhered to its promise to adjudicate him a youthful offender. We also note that defendant participated in a violent attack upon the victim, and that this case was not his first contact with the criminal justice system.
It is hereby ORDERED that the adjudication so appealed from is unanimously affirmed.