Opinion
2017–11479 Ind. No. 9332/15
10-23-2019
The PEOPLE, etc., Respondent, v. Dashawn SCARLETT, Appellant.
Paul Skip Laisure, New York, N.Y. (Martin B. Sawyer of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Gamaliel Marrero of counsel; Robert Ho on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Martin B. Sawyer of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Gamaliel Marrero of counsel; Robert Ho on the memorandum), for respondent.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (James P. Sullivan, J.), imposed June 14, 2017, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
As the People concede, since the defendant was not informed of the maximum sentence that could be imposed if he failed to comply with a condition of his plea agreement, his general waiver of his right to appeal, given at the time of the plea, did not encompass his claim that the enhanced sentence was excessive (see People v. McNeil, 164 A.D.3d 608, 608, 78 N.Y.S.3d 682 ; People v. Glickman, 158 A.D.3d 725, 725, 68 N.Y.S.3d 755 ). Contrary to the defendant's contention, however, the Supreme Court providently exercised its discretion in imposing a sentence greater than what had been promised based upon the defendant's violation of a condition of his plea agreement that he not be re-arrested prior to sentencing (see People v. Pereyra, 169 A.D.3d 719, 719, 93 N.Y.S.3d 130 ; People v. Neilson, 167 A.D.3d 779, 781, 90 N.Y.S.3d 78 ; People v. Smith, 160 A.D.3d 664, 665, 73 N.Y.S.3d 600 ; People v. Harris, 142 A.D.3d 557, 557–558, 36 N.Y.S.3d 211 ). "Even though the court had a right to enhance the sentence, [this Court has] broad, plenary power to modify an enhanced sentence that is harsh or excessive under the circumstances" ( People v. Diaz, 146 A.D.3d 803, 805, 46 N.Y.S.3d 627 ). The enhanced sentence imposed was not harsh or excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
BALKIN, J.P., CHAMBERS, COHEN, BARROS and CONNOLLY, JJ., concur.