| People v Driscoll |
| 2015 NY Slip Op 06531 [131 AD3d 766] |
| August 13, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRamonn S. Driscoll, Appellant. |
Abbie Goldbas, Utica, for appellant.
Mark D. Suben, District Attorney, Cortland (Zela E. Brotherton of counsel), forrespondent.
Appeal from a judgment of the County Court of Cortland County (Campbell, J.),rendered March 27, 2014, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a controlled substance in the third degree.
In satisfaction of a five-count indictment, defendant pleaded guilty to criminalpossession of a controlled substance in the third degree. As part of the plea agreement, hewas to waive his right to appeal and be sentenced to a cap of one year of incarceration,followed by one year of postrelease supervision. In addition, County Court imposedcertain conditions on the sentence advising defendant, among other things, that if he wasarrested prior to sentencing, it would not be obligated to impose the agreed-uponsentence. Before sentencing, defendant was arrested on two separate occasions. Althoughdefense counsel questioned the validity of these arrests, County Court imposed anenhanced sentence of three years in prison, to be followed by two years of postreleasesupervision, based upon defendant's violation of the sentencing conditions.[FN*] Defendant declined tocomplete his signing of the written waiver of his right to appeal at sentencing and he nowappeals.
Defendant's sole challenge is to County Court's imposition of the enhanced sentencebased upon his two arrests. When the validity of a postplea arrest is called into question,"the court must conduct an inquiry at which the defendant has an opportunity to showthat the arrest is [*2]without foundation" (People vOutley, 80 NY2d 702, 713 [1993], cert denied 519 US 964 [1996]; see People v Fiammegta, 14NY3d 90, 97 [2010]; People v Smalls, 85 AD3d 1450, 1451 [2011]).Significantly, "[t]he nature and extent of the inquiry—whether through a summaryhearing pursuant to CPL 400.10 or some other fair means—is within the court'sdiscretion [but it] must be of sufficient depth, . . . so that the court can besatisfied . . . of the existence of a legitimate basis for the arrest" (Peoplev Outley, 80 NY2d at 713 [internal citation omitted]).
Here, County Court did not conduct a formal evidentiary hearing regarding thevalidity of defendant's two arrests, and one was not required (see id. at 713; People v Talbot, 114 AD3d1000, 1001 [2014]). Instead, the court made an on-the-record inquiry during thesentencing proceeding at which it considered the accusatory instruments, supportingdocumentation and arguments of counsel before concluding that a legitimate basisexisted for defendant's arrests. Under the circumstances presented, we conclude thatCounty Court's inquiry was adequate and established that a legitimate basis existed fordefendant's arrests thereby warranting its imposition of the enhanced sentence (seePeople v Talbot, 114 AD3d at 1001; People v Paneto, 112 AD3d 1230, 1231[2013], lvdenied 23 NY3d 1023 [2014]).
Peters, P.J., Rose, Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:County Court denieddefendant's oral motion to withdraw his plea at sentencing.