| People v Coffey |
| 2010 NY Slip Op 07631 [77 AD3d 1202] |
| October 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robert J.Coffey Jr., Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered July 20, 2006, convicting defendant upon his plea of guilty of the crime of rape in thefirst degree (two counts).
In full satisfaction of nine counts charged in two separate indictments, defendant pleadedguilty to two counts of rape in the first degree and waived his right to appeal. Pursuant to the pleaagreement, he was to be sentenced to consecutive prison terms of 13 years on the first rape countand 12 years on the second rape count. The terms of the plea agreement also required defendantto cooperate with the Probation Department in its preparation of a presentence report, whichincluded answering its inquiries truthfully and in conformity with his representations to CountyCourt during the plea allocution and accepting responsibility for his actions. County Courtadvised defendant that, if he failed to abide by the conditions of the plea agreement, the courtwould not be bound to the sentencing agreement and could impose maximum consecutivesentences for the crimes. When defendant appeared for sentencing, the People indicated, anddefense counsel and defendant acknowledged, that defendant failed to comply with thoseconditions. County Court agreed and sentenced defendant to consecutive prison terms of 20 yearson the first rape count and 15 years on the second rape count. Defendant appeals, and we affirm.[*2]
Initially, we reject defendant's challenge to the validity ofthe appeal waiver. After County Court explained the separate and distinct right that defendantwas waiving and addressed it separately from those rights forfeited by his guilty plea (see People v Abrams, 75 AD3d927, 927 [2010]; People vTabbott, 61 AD3d 1183, 1184 [2009], lv denied 13 NY3d 750 [2009]),defendant affirmed his understanding and counsel fully joined in the waiver. The plea minutesalso reflect that, after conferring with counsel, defendant signed a written waiver of the right toappeal in open court and again confirmed his understanding of its legal consequences. Underthese circumstances, we are satisfied that defendant's appeal waiver was knowing, intelligent andvoluntary (see People v Glynn, 72AD3d 1351, 1352 n [2010], lv denied 15 NY3d 773 [2010]; People v Minter, 71 AD3d 1335,1336 [2010], lv denied 15 NY3d 754 [2010]).
Defendant's claim that County Court erred in imposing an enhanced sentence, although notforeclosed by his waiver of the right to appeal (see People v Faulkner, 54 AD3d 1134, 1134-1135 [2008], lvdenied 11 NY3d 854 [2008]), is similarly unavailing. A review of the presentenceinvestigation report clearly reveals that, in violation of the express conditions of the pleaagreement, defendant gave the Probation Department an account of his criminal conduct whichwas inconsistent with statements made during the plea allocution and failed to acceptresponsibility for his actions. Indeed, defendant candidly acknowledged at sentencing that heviolated the plea agreement. Having been fully informed during the plea colloquy of theconditions of the plea agreement and the consequences for noncompliance, County Court'simposition of an enhanced sentence was justified (see People v Hicks, 98 NY2d 185, 189[2002]; People v Bove, 64 AD3d812, 813 [2009], lv denied 13 NY3d 858 [2009]; People v Faulkner, 54AD3d at 1135). Although defendant argues that County Court should have first conducted ahearing on the issue, he neither requested a hearing nor moved to withdraw his plea on thisground (see People v Saucier, 69AD3d 1125, 1125-1126 [2010]; People v Delayo, 52 AD3d 1114, 1115 [2008], lv denied 11NY3d 787 [2008]). In any event, given that defendant was provided an opportunity to be heardand admitted his violation of the plea agreement, no formal hearing was necessary (see People v Valencia, 3 NY3d714, 715 [2004]; People v Saucier, 69 AD3d at 1126).
Defendant's effective assistance of counsel argument is foreclosed by his waiver of the rightto appeal since the ineffectiveness alleged does not bear upon the voluntariness of his plea (see People v Leigh, 71 AD3d1288, 1288 [2010], lv denied 15 NY3d 775 [2010]; People v Briggs, 21 AD3d 652,653 [2005], lv denied 5 NY3d 881 [2005]). Finally, inasmuch as defendant was informedof the maximum potential sentence for noncompliance with the conditions of the plea agreement,his challenge to the severity of the enhanced sentence is likewise barred by his appeal waiver(see People v Saucier, 69 AD3d at 1126; People v Faulkner, 54 AD3d at 1135).
Spain, Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.