People v Wilson

2010 NY Slip Op 00018 [69 AD3d 970]

January 7, 2010

Appellate Division, Third Department

As corrected through Wednesday, March 10, 2010

The People of the State of New York, Respondent, v Marquita G.Wilson, Appellant.

—[*1]Melissa A. Latino, Albany, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.

Cardona, P.J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered January 3, 2008, convicting defendant upon her plea of guilty of the crime of attemptedassault in the second degree.

Defendant was charged with assault in the second degree based upon allegations that she cuther boyfriend with a box cutter. In exchange for her plea of guilty to attempted assault in thesecond degree, County Court (Mathews, J.) agreed to sentence her to six months in jail and fiveyears of probation. Prior to sentencing, defendant located a drug treatment program and, with thePeople's cooperation, renegotiated her sentence to provide that if she completed the program, thejail time component would be eliminated. While defendant waited for a bed to become available,the court placed her on interim probation. Defendant completed the program, but immediatelyrelapsed. She was then admitted to a long-term treatment program, but again relapsed.

Thereafter, County Court (Smith, J.) determined that an enhanced sentence of11/3 to 4 years in prison was appropriate. Before sentencing, the court twiceoffered defendant the opportunity to withdraw her guilty plea and proceed to trial. Whendefendant declined, the court sentenced her accordingly. Defendant now appeals, her primarycontentions being that the court [*2]lacked authority to enhanceher sentence or, in the alternative, that the enhanced sentence was harsh and excessive.

When deciding that the negotiated sentence was not appropriate, County Court considered,among other things, reports that, during defendant's interim probation, she tested positive forcocaine, failed to complete drug treatment, and missed appointments with her probation officer.Defendant contends that because she was never advised that these acts would constituteviolations of the plea agreement, the court was not authorized to impose an enhanced sentencebased upon them. We do not agree. Under these circumstances, the court could impose anenhanced sentence if it either informed defendant at the time of her plea that it couldimpose a different sentence if she failed to meet specified conditions or permitted her towithdraw her plea (see People vArmstead, 52 AD3d 966, 967 [2008]; People v Kinch, 15 AD3d 780, 781 [2005]). Here, County Courtoffered defendant the opportunity to withdraw her plea—which she declined todo—before it imposed the greater sentence. Accordingly, we find no abuse of discretion inthe court's decision to enhance the sentence (cf. People v Gordon, 53 AD3d 793, 794 [2008]; People vArmstead, 52 AD3d at 967-968; People v Kinch, 15 AD3d at 781).

Nor do we find the sentence of 11/3 to 4 years to be harsh and excessive giventhe injury defendant inflicted upon her boyfriend—cutting his throat with a box cutter, aninjury that required 18 stitches to repair—as well as her criminal history, which alsoincludes a conviction for assault in the third degree.

Defendant's remaining contentions, including her argument that she did not receive theeffective assistance of counsel, have been examined and found to be without merit.

Lahtinen, Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.