| People v Hendrix |
| 2009 NY Slip Op 03576 [62 AD3d 1261] |
| May 1, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Naosha R.Hendrix, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Matthew H. James of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Jeffrey R. Merrill, J.), renderedDecember 19, 2006. The judgment convicted defendant, upon her plea of guilty, of criminalpossession 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 her upon her plea of guilty ofcriminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1]). We agree with defendant that her waiver of the right to appeal is invalid inasmuch as therecord fails to "establish that [she] understood that the right to appeal is separate and distinctfrom those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256[2006]; see People v Cain, 29AD3d 1157 [2006]; People vPopson, 28 AD3d 870 [2006]). The further contention of defendant that her plea wasnot voluntarily entered because she provided only monosyllabic responses to County Court'squestions is actually a challenge to the factual sufficiency of the plea allocution (see People v Bailey, 49 AD3d1258 [2008], lv denied 10 NY3d 932 [2008]). Although that contention is notencompassed by the invalid waiver of the right to appeal, defendant failed to preserve thatcontention for our review (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Collins, 45 AD3d 1472[2007], lv denied 10 NY3d 861 [2008]). In any event, that contention lacks merit. "Theunequivocal affirmative responses of defendant to [the c]ourt's questions established all of theessential elements of" the crime to which she pleaded guilty (People v Ramos, 56 AD3d 1180, 1181 [2008], lv denied12 NY3d 761 [2009]; see People vHarris, 51 AD3d 1335 [2008], lv denied 11 NY3d 789 [2008]).
Contrary to the further contention of defendant, the court did not abuse its discretion inenhancing the sentence without conducting a hearing to determine the validity of her arrestduring the time between the plea and the sentencing hearing. Defendant did not deny that shecommitted the crime for which she was arrested or otherwise challenge the validity of the arrest(see People v Huggins, 45 AD3d1380 [2007], lv denied 9 NY3d 1006 [2007]; People v Wilson, 257 AD2d674 [1999], lv denied 93 NY2d 981 [1999]; see generally People v Outley, 80NY2d 702, 713 [1993]). Present—Scudder, P.J., Smith, Fahey, Carni and Pine, JJ.