Opinion
2013-05-22
The PEOPLE, etc., respondent, v. Terry YOUMANS, appellant.
Steven A. Feldman, Uniondale, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Douglas Noll and Andrea M. DiGregorio of counsel), for respondent.
Steven A. Feldman, Uniondale, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Douglas Noll and Andrea M. DiGregorio of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Gulotta, Jr., J.), rendered January 19, 2011, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant knowingly, voluntarily, and intelligently waived his right to appeal ( see People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Although the defendant's waiver of the right to appeal is valid, it does not preclude appellate review of his claim that he was denied his right to due process because the sentencing court did not conduct a hearing to determine if he violated a condition of the plea agreement ( see People v. Arrington, 94 A.D.3d 903, 941 N.Y.S.2d 877;People v. Butler, 49 A.D.3d 894, 895, 854 N.Y.S.2d 506;People v. Kitchens, 46 A.D.3d 577, 578, 846 N.Y.S.2d 625).
Sentencing is a critical stage of the criminal proceeding and must satisfy the requirements of due process ( see People v. Fiammegta, 14 N.Y.3d 90, 96, 896 N.Y.S.2d 735, 923 N.E.2d 1123; People v. Outley, 80 N.Y.2d 702, 712, 594 N.Y.S.2d 683, 610 N.E.2d 356). In order to comply with due process, the sentencing court must assure itself that the information upon which it bases the sentence is reliable and accurate ( see People v. Outley, 80 N.Y.2d at 712, 594 N.Y.S.2d 683, 610 N.E.2d 356). Contrary to the defendant's contention, the sentencing court conducted an inquiry sufficient to determine whether he violated a condition of the plea agreement by failing to comply with a drug abuse treatment program ( see People v. Arrington, 94 A.D.3d at 903, 941 N.Y.S.2d 877;cf. People v. Fiammegta, 14 N.Y.3d at 98, 896 N.Y.S.2d 735, 923 N.E.2d 1123).
The defendant's remaining contentions are without merit.