| People v Davis |
| 2009 NY Slip Op 03580 [62 AD3d 1266] |
| May 1, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Daniel Davis,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered September 22, 2008. The judgment convicted defendant, upon his plea of guilty, ofcriminal mischief in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence and as modified the judgment is affirmed, and the matter is remitted toSupreme Court, Erie County, for further proceedings in accordance with the followingmemorandum: On appeal from a judgment convicting him upon his plea of guilty of criminalmischief in the fourth degree (Penal Law § 145.00 [1]), defendant contends that SupremeCourt erred in denying his request for a hearing to determine the validity of his post-plea arrest(see People v Outley, 80 NY2d 702 [1993]). We agree. The record establishes that thecourt informed defendant during the plea proceeding that, in the event that he was arrestedbetween the time of the plea and sentencing, he could be sentenced to a term of incarceration ofup to one year. At the sentencing hearing, the prosecutor indicated that defendant had in factbeen "rearrested" and that the case was pending in City Court. Defense counsel stated that he didnot have the "lab report" or the "accusatory documents upon which [defendant] was arrested"and that the court was obligated to afford defendant the opportunity to controvert the legality orreasonableness of the arrest.
We conclude that the court erred in imposing an enhanced sentence without conducting anOutley hearing. Where, as here, "an issue is raised concerning the validity of the postpleacharge or there is a denial of any involvement in the underlying crime, the court must conduct aninquiry at which the defendant has an opportunity to show that the arrest is without foundation"(Outley, 80 NY2d at 713). The mere fact that defendant was arrested, without more, isinsufficient to justify an enhanced sentence based on a post-plea arrest (id.). Here, thecourt failed to conduct the requisite inquiry pursuant to Outley. We therefore modify thejudgment by vacating the sentence, and we remit the matter to Supreme Court for resentencingfollowing an Outley hearing. If the court determines following the Outleyhearing that the arrest lacked a legitimate basis, the court must impose a sentence of probation inaccordance with the terms of the plea agreement or afford defendant the opportunity to withdrawhis plea of guilty. Present—Scudder, P.J., Martoche, Fahey, Peradotto and Green, JJ.