| People v Butler |
| 2008 NY Slip Op 02858 [49 AD3d 894] |
| March 25, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Melvin Butler, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.),rendered April 5, 2006, convicting him of attempted assault in the first degree, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is affirmed.
The form waiver of the right to appeal signed by the defendant contained a misstatement ofthe applicable law and was misleading (see People v Pollenz, 67 NY2d 264 [1986];People v Hurd, 44 AD3d 791, 792 [2007], lv denied 9 NY3d 1006 [2007]).Therefore, the purported waiver was invalid and appellate review of the defendant's claim thatthe sentence imposed was excessive is not foreclosed.
We note that, apart from the invalidity of the waiver, a general waiver of the right to appealdoes not foreclose review of the defendant's contention that he was denied due process in thehearing conducted to determine if he violated a condition of the plea agreement (see People vKitchens, 46 AD3d 577 [2007]; People v Garner, 18 AD3d 669, 669-670 [2005];People v Stowe, 15 AD3d 597, 598 [2005]). The hearing that was conducted wasthorough and sufficient to support the Supreme Court's determination that the defendant'sstatements to the probation department were untruthful (see People v Kinloch, 7 AD3d734, 735 [2004]). The hearing was conducted in accordance with the requirements of due process(see People v Valencia, 3 NY3d 714 [2004]; People v Hicks, 98 NY2d 185[2002]; People v Outley, 80 NY2d 702 [1993]). The condition of the plea that thedefendant be truthful in responding to the inquiries of the probation department was explicit andobjective, and was acknowledged, understood, and accepted by the defendant as part [*2]of the plea agreement. The defendant's violation of that conditionallowed the Supreme Court to impose the enhanced sentence.
The enhanced sentence was part of the negotiated plea agreement (see People vMcCauley, 37 AD3d 739 [2007]; People v Rosato, 37 AD3d 741 [2007]; Peoplev Rodriguez, 32 AD3d 481 [2006]). In any event, the defendant's contention that thesentence imposed was excessive is without merit (see People v Suitte, 90 AD2d 80[1982]). Rivera, J.P., Ritter, Carni and Leventhal, JJ., concur.