Opinion
7997 Ind. 1823/16
01-03-2019
The PEOPLE of the State of New York, Respondent, v. James POWER, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
Friedman, J.P., Richter, Gesmer, Kern, Moulton, JJ.
Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered December 2, 2016, convicting defendant, upon his plea of guilty, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of two to four years, unanimously affirmed.
The record does not establish that defendant made an enforceable waiver of the right to appeal. However, defendant failed to preserve his claim that the court conducted an insufficient inquiry as to whether he violated the terms of his plea agreement (see e. g. People v. Stephens, 108 A.D.3d 414, 967 N.Y.S.2d 731 [1st Dept. 2013], lv denied 21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151 [2013] ), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. Due process was satisfied, because the sentencing court conducted an adequate inquiry and provided defendant with a reasonable opportunity to present his explanation before finding that he had willfully violated the plea agreement and forfeited his opportunity for a disposition involving dismissal of the charges (see People v. Fiammegta, 14 N.Y.3d 90, 98, 896 N.Y.S.2d 735, 923 N.E.2d 1123 [2010] ).