| People v Jackson |
| 2009 NY Slip Op 08709 [67 AD3d 1252] |
| November 25, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v TheresaJackson, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett Knowles of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered February 11, 2008, convicting defendant upon her plea of guilty of the crime ofattempted criminal possession of a forged instrument in the second degree.
In full satisfaction of a superior court information and a separate indictment, defendantpleaded guilty to one count of attempted criminal possession of a forged instrument in the seconddegree, waived her right to appeal, and was to receive an agreed-upon prison sentence of1½ to 3 years. In her plea allocution, defendant admitted that she attempted to purchaseitems with what she knew to be counterfeit money. Defendant was advised that, as part of theplea agreement, if she failed to cooperate with the Probation Department in preparing apresentence investigation report and answer all questions put to her truthfully and consistent withher admissions in the plea colloquy, an enhanced sentence of up to 2 to 4 years in prison couldbe imposed. On the date on which defendant's sentencing was scheduled, County Court notedthat the presentence investigation report indicated that defendant had made statements to theprobation officer that were inconsistent with statements made to the court in the plea colloquy.Defendant denied having done so and a hearing ensued. Following the hearing, County Courtdetermined that defendant had made such an inconsistent statement regarding her knowledge ofthe money being counterfeit and had, therefore, violated the plea agreement. Defendant wasaccordingly sentenced to a prison term of 2 to 4 years and now appeals.[*2]
We affirm. Defendant's sole argument on appeal is thatCounty Court erred in finding that she had violated the plea agreement. Initially, we note thatdefendant's argument survives her waiver of the right to appeal (see People v Terrell, 41AD3d 1044, 1045 [2007]) and is preserved for our review given her denial of having violated theplea agreement, which resulted in a hearing and subsequent determination by County Court(see CPL 470.05 [2]; People v McClemore, 276 AD2d 32, 36 [2000]; cf.People v Delayo, 52 AD3d 1114, 1115 [2008], lv denied 11 NY3d 787 [2008]).Turning to the merits of defendant's argument, the probation officer who interviewed defendanttestified at the hearing that defendant had been asked approximately four times whether sheknew that the money she possessed was counterfeit and repeatedly denied having suchknowledge. According deference to County Court's credibility determinations (see People vScott, 29 AD3d 1025, 1027 [2006]), sufficient evidence existed to conclude that defendanthad violated the plea agreement (see People v Valencia, 3 NY3d 714, 715 [2004];People v Butler, 49 AD3d 894, 895 [2008], lv denied 10 NY3d 932 [2008]).
Cardona, P.J., Peters, Kane and Garry, JJ., concur. Ordered that the judgment is affirmed.