| People v Davis |
| 2010 NY Slip Op 03003 [72 AD3d 1292] |
| April 15, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Dean Davis,Appellant. |
—[*1] James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), renderedFebruary 5, 2009, convicting defendant upon his plea of guilty of the crimes of attempted assaultin the first degree, reckless endangerment in the first degree and criminal contempt in the firstdegree.
In satisfaction of a nine-count indictment, defendant pleaded guilty to attempted assault inthe first degree, reckless endangerment in the first degree and criminal contempt in the firstdegree, and waived his right to appeal. Under the terms of the plea agreement, he was to besentenced to 10 years in prison on the assault conviction, to be followed by five years ofpostrelease supervision, 3½ to 7 years in prison on the reckless endangerment convictionand 2 to 4 years in prison on the criminal contempt conviction, all to run concurrent to oneanother. Prior to the close of the plea proceedings, County Court warned defendant that, in theevent he committed a crime prior to sentencing, he would be subject to a sentence greater than10 years. Thereafter, County Court sentenced defendant to the agreed-upon prison terms, butdirected that they run consecutively, not concurrently, to one another. Defendant appeals.
Defendant asserts, among other things, that County Court improperly enhanced his sentenceby imposing consecutive terms of imprisonment instead of concurrent ones. Preliminarily, wenote that defendant is not precluded by his waiver of appeal from raising this challenge (see People v McDermott, 68 AD3d1453, 1453 [2009]; People vNicholson, 50 AD3d 1397, 1398 [2008], lv denied 11 NY3d 834 [2008]) andhas preserved it by his objection during [*2]sentencing. Therecord reveals that the only condition imposed by County Court on defendant as part of the pleaagreement—the violation of which would warrant enhancement of thesentence—was that defendant refrain from committing a crime prior to sentencing. Thereis no indication that defendant violated this condition. Consequently, County Court should havesentenced defendant to concurrent terms of imprisonment in accordance with the plea agreement(see People v Hastings, 24 AD3d954, 955 [2005]; People vDonnelly, 23 AD3d 921, 922 [2005]). Inasmuch as it did not, the judgment must bemodified accordingly. In view of our disposition, we need not address defendant's remainingclaims.
Cardona, P.J., Mercure, Rose, Stein and McCarthy, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by directing that defendant'ssentences shall run concurrently, and, as so modified, affirmed.