Opinion
2022-02925
04-29-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. BALTAZAR LOPEZ, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, NEMOYER, AND BANNISTER, JJ.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), rendered June 28, 2017. The judgment convicted defendant, upon his plea of guilty, of sexual abuse in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Monroe County, for resentencing in accordance with the following memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of sexual abuse in the first degree (Penal Law § 130.65 [4]).
Initially, we conclude that defendant's purported waiver of the right to appeal does not encompass his contention that Supreme Court erred in imposing an enhanced term of incarceration based on postplea conduct (see People v Laskowski, 46 A.D.3d 1383, 1384 [4th Dept 2007]; People v Parker, 271 A.D.2d 63, 68 [4th Dept 2000], lv denied 95 N.Y.2d 967 [2000]; see also People v Forest, 148 A.D.3d 1585, 1586 [4th Dept 2017], lv denied 29 N.Y.3d 1091 [2017]). Nonetheless, we further conclude that the court, following an evidentiary hearing, properly determined that, in violation of the express conditions of the plea agreement, defendant gave the probation department an account of his criminal conduct which was inconsistent with statements made during the plea allocution and denied committing the offense (see People v Stanley, 140 A.D.3d 1757, 1758 [4th Dept 2016]; see also People v Scott, 200 A.D.3d 1729, 1730 [4th Dept 2021]; see generally People v Hicks, 98 N.Y.2d 185, 189 [2002]).
As defendant further contends and the People correctly concede, the court improperly sentenced defendant as a second felony offender on the basis of his prior federal drug conspiracy conviction. Defendant's contention would survive even a valid waiver of the right to appeal (see People v Bell-Bradley, 179 A.D.3d 1539, 1540 [4th Dept 2020], lv denied 35 N.Y.3d 968 [2020]; People v Lopez, 164 A.D.3d 1625, 1625 [4th Dept 2018], lv denied 32 N.Y.3d 1174 [2019]; People v Sumter, 157 A.D.3d 1125, 1126 [3d Dept 2018]) and, although he failed to preserve that contention for our review (see People v Smith, 73 N.Y.2d 961, 962-963 [1989]), we conclude that this case "falls within the narrow exception to [the] preservation rule permitting appellate review when a sentence's illegality is readily discernible from the... record" (People v Santiago, 22 N.Y.3d 900, 903 [2013]; see Sumter, 157 A.D.3d at 1126). Here, the record establishes that the predicate felony was based on defendant's previous conviction in federal court of conspiracy to possess with intent to distribute 500 grams or more of cocaine (21 USC § 846; see § 841 [a] [1]; [b]). However, "under New York's 'strict equivalency' standard for convictions rendered in other jurisdictions, a federal conviction for conspiracy to commit a drug crime may not serve as a predicate felony for sentencing purposes" (People v Ramos, 19 N.Y.3d 417, 418 [2012]; see Sumter, 157 A.D.3d at 1126; People v Hall, 149 A.D.3d 1610, 1610 [4th Dept 2017]; People v Robinson, 148 A.D.3d 1639, 1640-1641 [4th Dept 2017]). We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court for resentencing (see Ramos, 19 N.Y.3d at 421; Hall, 149 A.D.3d at 1610).