| People v Huggins |
| 2007 NY Slip Op 08619 [45 AD3d 1380] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v TyronHuggins, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered April 6,2006. The judgment convicted defendant, upon his plea of guilty, of attempted criminal sale of acontrolled substance in the third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofattempted criminal sale of a controlled substance in the third degree (Penal Law §§110.00, 220.39 [1]). We agree with defendant that his waiver of the right to appeal does notencompass his contention that County Court erred in imposing an enhanced sentence based uponhis postplea conduct (see People vLighthall, 6 AD3d 1170 [2004], lv denied 3 NY3d 643 [2004]; People vBaxter, 302 AD2d 950 [2003], lv denied 99 NY2d 652 [2003]). Nevertheless, wereject defendant's contention that the court failed to make a sufficient inquiry before imposing theenhanced sentence. Defendant did not deny his involvement in the postplea crime or argue thatthere was no legitimate basis for his arrest, and thus the court did not err in failing to conduct aninquiry into the matter (see People v Wilson, 257 AD2d 674 [1999], lv denied 93NY2d 981 [1999]; see generally People v Outley, 80 NY2d 702, 712-713 [1993]).Defendant's further contention that the enhanced sentence is unduly harsh and severe also is notencompassed by the waiver of the right to appeal "because the court failed to advise defendant ofthe potential period of incarceration that could be imposed" for an enhanced sentence (People v Trisvan, 8 AD3d 1067[2004], lv denied 3 NY3d 682 [2004]; cf. People v Jackson, 34 AD3d 1318 [2006], lv denied 8NY3d 923 [2007]; see generally People v Lococo, 92 NY2d 825, 827 [1998]). Weconclude, however, that the sentence is not unduly harsh or severe. Present—Scudder, P.J.,Gorski, Centra, Fahey and Green, JJ.