Opinion
No. 63 KA 23-00288
02-09-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ANDREW S. FISHER, DEFENDANT-APPELLANT.
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., BANNISTER, GREENWOOD, AND KEANE, JJ.
Appeal from a judgment of the Steuben County Court (Patrick F. McAllister, A.J.), rendered December 5, 2022. The judgment convicted defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the fourth degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted criminal possession of a controlled substance in the fourth degree (Penal Law §§ 110.00, 220.09 [2]). Defendant contends that County Court erred in imposing an enhanced sentence without holding a hearing or otherwise making a sufficient inquiry regarding his alleged violation of the conditions of the plea agreement. That contention is not preserved for our review inasmuch as defendant" 'failed to request such a hearing and did not move to withdraw his plea on that ground'" (People v Scott, 200 A.D.3d 1729, 1730 [4th Dept 2021]). In any event, the contention lacks merit. Under the circumstances, the court was not required to conduct a hearing, and it provided "[b]oth defendant and his counsel... ample opportunity to refute the court's assertions that defendant had violated the plea terms" (People v Albergotti, 17 N.Y.3d 748, 750 [2011]; see generally People v Semple, 23 A.D.3d 1058, 1059-1060 [4th Dept 2005], lv denied 6 N.Y.3d 852 [2006]), specifically by his failure to appear at sentencing and failure to report to probation as directed by the court (see People v Baker, 204 A.D.3d 1471, 1472 [4th Dept 2022], lv denied 38 N.Y.3d 1069 [2022]; People v Winship, 26 A.D.3d 768, 768-769 [4th Dept 2006], lv denied 6 N.Y.3d 899 [2006]; see also Albergotti, 17 N.Y.3d at 749-750).