| People v Whaley |
| 2010 NY Slip Op 05614 [74 AD3d 1641] |
| June 24, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Nathan L.Whaley, Appellant. |
—[*1] William G. Gabor, District Attorney, Wampsville (Robert A. Mascari of counsel), forrespondent.
Appeal from a judgment of the County Court of Madison County (DiStefano, J.), renderedSeptember 10, 2009, convicting defendant upon his plea of guilty of the crime of attempted rapein the second degree.
In June 2009, defendant was charged with rape in the second degree for allegedly engagingin sexual intercourse with the 14-year-old daughter of his girlfriend. Pursuant to a pleaagreement, defendant elected to plead guilty to one count of attempted rape in the second degreein exchange for a prison sentence of two years, followed by five years of postrelease supervision.During the plea allocution, County Court told defendant that it would go along with the pleaagreement on the condition that he cooperate with the Probation Department and "stay out oftrouble" between the time of plea and sentencing. The court further advised defendant that if hedid those two things, it would sentence him pursuant to the plea agreement but, if not, it wouldnot allow him to withdraw his guilty plea and would not be bound by the agreement. Prior tosentencing, defendant was charged with criminal contempt in the second degree for allegedlyviolating an order of protection that prohibited him from contacting the victim. Based upon thisalleged violation, County Court conducted an Outley hearing (see People vOutley, 80 NY2d 702 [1993]), after which it found defendant to have violated the pleaagreement, declined to impose the two-year agreed-upon sentence and, instead, imposed anenhanced sentence of four years in prison, followed by five years of postrelease supervision.Defendant appeals and we affirm.
We reject defendant's contention that County Court impermissibly enhanced his [*2]sentence inasmuch as the evidence established that he violated theorder of protection on two separate occasions. The court's admonishment to stay out of trouble orit would not be bound by the plea agreement was appropriate and sufficient, particularly here,where defendant's behavior was directly related to the crime for which he was being sentenced(see People v Bowman, 34 AD3d935, 936 [2006], lv denied 8 NY3d 844 [2007]; People v Barilla, 289 AD2d876, 877 [2001]; People v Coleman, 266 AD2d 227 [1999], lv denied 94 NY2d946 [2000]).
Cardona, P.J., Mercure, Lahtinen, Malone Jr. and Egan Jr., JJ., concur. Ordered that thejudgment is affirmed.