Opinion
2011-12-23
The PEOPLE of the State of New York, Respondent, v. Paul VERBITSKY, Defendant–Appellant.
Appeal from a judgment of the Herkimer County Court (Patrick L. Kirk, J.), rendered August 4, 2008. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in the second degree.*889 Peter J. Digiorgio, Jr., Utica, for defendant–appellant. John H. Crandall, District Attorney, Herkimer (Jacquelyn M. Asnoe of counsel), for respondent.
Appeal from a judgment of the Herkimer County Court (Patrick L. Kirk, J.), rendered August 4, 2008. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in the second degree.*889 Peter J. Digiorgio, Jr., Utica, for defendant–appellant. John H. Crandall, District Attorney, Herkimer (Jacquelyn M. Asnoe of counsel), for respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a plea of guilty, of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2] ). We reject defendant's contention that County Court erred in imposing an enhanced term of incarceration based on postplea acts committed by defendant. “[T]o satisfy due process, a sentencing court must, prior to imposing the prison alternative pursuant to a plea agreement, conduct an inquiry sufficient to conclude that a violation of the plea agreement occurred” ( People v. Valencia, 3 N.Y.3d 714, 715, 786 N.Y.S.2d 374, 819 N.E.2d 990; see People v. Outley, 80 N.Y.2d 702, 713, 594 N.Y.S.2d 683, 610 N.E.2d 356), and the court made the requisite inquiry here ( see Valencia, 3 N.Y.3d at 715, 786 N.Y.S.2d 374, 819 N.E.2d 990; People v. McGrath, 67 A.D.3d 1475, 1476, 888 N.Y.S.2d 453, lv. denied 14 N.Y.3d 803, 899 N.Y.S.2d 137, 925 N.E.2d 941). We reject defendant's further contention that the sentence is unduly harsh or severe. Finally, defendant failed to preserve for our review his contention that the sentence imposed constituted cruel and unusual punishment ( see People v. Rogers, 63 A.D.3d 1631, 879 N.Y.S.2d 796, lv. denied 13 N.Y.3d 745, 886 N.Y.S.2d 99, 914 N.E.2d 1017, 13 N.Y.3d 749, 886 N.Y.S.2d 103, 914 N.E.2d 1021; People v. Clark, 61 A.D.3d 1426, 1427, 877 N.Y.S.2d 543, lv. denied 12 N.Y.3d 913, 884 N.Y.S.2d 694, 912 N.E.2d 1075) and, in any event, that contention lacks merit ( see People v. Holmquist, 5 A.D.3d 1041, 773 N.Y.S.2d 682, lv. denied 2 N.Y.3d 800, 781 N.Y.S.2d 300, 814 N.E.2d 472).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.