Opinion
2012-12-28
The PEOPLE of the State of New York, Respondent, v. Dennis SCOTT, Defendant–Appellant.
Adam H. Van Buskirk, Aurora, for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
Adam H. Van Buskirk, Aurora, for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a plea of guilty of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ). Although defendant's contention that County Court erred in failing to hold an Outley hearing to determine the legality of his postplea arrest survives his valid waiver of the right to appeal ( see People v. Arrington, 94 A.D.3d 903, 903, 941 N.Y.S.2d 877;People v. Peck, 90 A.D.3d 1500, 1501, 936 N.Y.S.2d 797; People v. Butler, 49 A.D.3d 894, 895, 854 N.Y.S.2d 506,lv. denied10 N.Y.3d 932, 862 N.Y.S.2d 339, 892 N.E.2d 405,reconsideration denied11 N.Y.3d 830, 868 N.Y.S.2d 605, 897 N.E.2d 1089), that contention is nevertheless unpreserved for our review inasmuch as he failed to request such a hearing and did not move to withdraw his plea on that ground ( see People v. Anderson, 99 A.D.3d 1239, 1239, 951 N.Y.S.2d 448;People v. Bragg, 96 A.D.3d 1071, 1071, 946 N.Y.S.2d 890;Arrington, 94 A.D.3d at 903, 941 N.Y.S.2d 877). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ), particularly in light of defendant's admission that, less than three weeks after pleading guilty, he purchased and possessed heroin in violation of an express condition of the plea agreement.
Defendant likewise failed to preserve for our review his contention that the court erred in imposing an enhanced sentence without affording him an opportunity to withdraw his plea because he did not object to the enhanced sentence, nor did he move to withdraw the plea or to vacate the judgment of conviction on that ground ( see People v. Sprague, 82 A.D.3d 1649, 1649, 919 N.Y.S.2d 433,lv. denied17 N.Y.3d 801, 929 N.Y.S.2d 110, 952 N.E.2d 1105;People v. Magliocco, 78 A.D.3d 1648, 1649, 910 N.Y.S.2d 745,lv. denied16 N.Y.3d 798, 919 N.Y.S.2d 515, 944 N.E.2d 1155). In any event, that contention lacks merit. The record establishes that defendant “was clearly informed of the consequences of his failure” to abide by the conditions of his plea agreement ( Sprague, 82 A.D.3d at 1649, 919 N.Y.S.2d 433;see People v. Winters, 82 A.D.3d 1691, 1691, 919 N.Y.S.2d 438,lv. denied17 N.Y.3d 810, 929 N.Y.S.2d 570, 953 N.E.2d 808). Thus, upon defendant's violation of a condition of the plea agreement, the court was “no longer bound by the agreement and [was] free to impose a greater sentence without offering ... defendant an opportunity to withdraw his ... plea” ( Sprague, 82 A.D.3d at 1649, 919 N.Y.S.2d 433 [internal quotation marks omitted]; see People v. Faso, 82 A.D.3d 1584, 1584, 919 N.Y.S.2d 420,lv. denied17 N.Y.3d 816, 929 N.Y.S.2d 804, 954 N.E.2d 95,reconsideration denied17 N.Y.3d 952, 936 N.Y.S.2d 78, 959 N.E.2d 1027;People v. Vaillant, 77 A.D.3d 1389, 1390, 908 N.Y.S.2d 798).
Defendant further contends that the sentence is unduly harsh and severe given his age, health, and drug addiction. That contention is properly before us despite defendant's valid waiver of the right to appeal because the court “failed to advise defendant of the potential periods of incarceration that could be imposed, including the potential periods of incarceration for an enhanced sentence ..., before he waived his right to appeal” ( People v. Trisvan, 8 A.D.3d 1067, 1067, 778 N.Y.S.2d 398,lv. denied3 N.Y.3d 682, 784 N.Y.S.2d 20, 817 N.E.2d 838;see People v. Huggins, 45 A.D.3d 1380, 1380–1381, 845 N.Y.S.2d 609,lv. denied9 N.Y.3d 1006, 850 N.Y.S.2d 394, 880 N.E.2d 880;People v. Mack, 38 A.D.3d 1292, 1293, 832 N.Y.S.2d 709). We nevertheless reject defendant's contention. Defendant has a lengthy criminal history, which includes convictions of petit larceny, criminal sale of a controlled substance, and robbery. The statement of defendant that he is HIV positive, without any additional information as to the state of his health, is insufficient to warrant a reduction of the sentence. Defendant is only 56 years old and, contrary to his contention, the seven-year sentence does not equate to a de facto death sentence ( see People v. Spitzley, 303 A.D.2d 837, 838, 755 N.Y.S.2d 336,lv. denied100 N.Y.2d 599, 766 N.Y.S.2d 175, 798 N.E.2d 359;People v. Jones, 290 A.D.2d 726, 727, 736 N.Y.S.2d 192,lv. denied 97 N.Y.2d 756, 742 N.Y.S.2d 616, 769 N.E.2d 362). Moreover, the circumstances defendant cites on appeal, i.e., his age, health, and drug addiction, were before the court at the time of sentencing ( see People v. Tasber, 273 A.D.2d 542, 543, 709 N.Y.S.2d 242,lv. denied95 N.Y.2d 858, 714 N.Y.S.2d 9, 736 N.E.2d 870). Thus, defendant has not established “extraordinary circumstances ... that would warrant a reduction of the sentence as a matter of discretion in the interest of justice” ( People v. Taplin, 1 A.D.3d 1044, 1046, 767 N.Y.S.2d 541,lv. denied1 N.Y.3d 635, 777 N.Y.S.2d 33, 808 N.E.2d 1292 [internal quotation marks omitted]; see generally People v. McGarry, 219 A.D.2d 744, 744, 631 N.Y.S.2d 95,lv. denied87 N.Y.2d 848, 638 N.Y.S.2d 607, 661 N.E.2d 1389).
Finally, we reject defendant's unsupported contention that the court punished him for his heroin addiction.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.