| People v Zobe |
| 2011 NY Slip Op 02044 [82 AD3d 1017] |
| March 15, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Monther Zobe, Also Known as Gunther Ezupe,Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu and Richard LongworthHecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Hubert,J.), rendered June 13, 2008, convicting him of insurance fraud in the third degree, upon his pleaof guilty, and imposing sentence. Justice Mastro has been substituted for the late Justice Fisher(see 22 NYCRR 670.1 [c]).
Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as somodified, the judgment is affirmed, and the matter is remitted to the County Court, WestchesterCounty, for a more thorough inquiry pursuant to People v Outley (80 NY2d 702 [1993])and a determination on the issue of whether the defendant violated a condition of his pleaagreement that he be truthful with the Westchester County Department of Probation, and forresentencing thereafter.
The defendant pleaded guilty to insurance fraud in the third degree (Penal Law §176.20) in exchange for an agreed-upon sentence. During the plea colloquy, the defendant statedthat he understood that one of the conditions of the plea agreement was that he was required toanswer questions posed by the Westchester County Department of Probation (hereinafter theprobation department) truthfully and in a manner consistent with the statements he made to theCounty Court during the plea colloquy. The defendant also indicated that he understood that if heviolated this condition, the County Court would not allow him to withdraw his plea, but wouldimpose an enhanced sentence, up to the maximum allowed.
The County Court enhanced the defendant's sentence on the ground that the defendantviolated the plea agreement by failing to be truthful with the probation department. However, wemodify the judgment of conviction to vacate the sentence imposed because the County Courtfailed to conduct a sufficient inquiry pursuant to People v Outley (80 NY2d 702 [1993]),before imposing the enhanced sentence upon the defendant.
According to the presentence report, the defendant told a probation officer that his car wasstolen, and that he reported the theft to his insurance company. As recounted by the defendant to[*2]the probation officer, when the car was recovered, he took itto a repair shop, and an agent for the defendant's insurer called the police. According to thedefendant's explanation, a uniformed officer responded to the repair shop, and asked thedefendant for his driver's license, registration, and insurance card, which the defendant provided.The defendant later stated to his probation officer that the car belonged to him, and that he had avalid driver's license, registration, and insurance card. The defendant also told the probationofficer that, while at the repair shop, and after the uniformed officer arrived there, he recognizeda detective who had arrested him in the past. According to the presentence report, the defendantexplained to the probation department that the detective instructed the uniformed officer to arrestthe defendant, after which the detective handcuffed the defendant to a chair, and that thedefendant was thereafter beaten by police officers. The defendant told his probation officer thatthis incident was "all a false arrest," and that he should not be in jail. The defendant also statedthat he was suing the Yonkers Police Department and, according to the presentence report, thedefendant provided his probation officer with a copy of the complaint in that action, as well as acopy of his medical record from St. Joseph's Medical Center.
When the defendant was given an opportunity to explain the statements in the presentencereport at the sentencing hearing, the defendant stated that, although he was guilty of theunderlying crime of insurance fraud in the third degree, and never denied his guilt to theprobation department, his probation officer misunderstood what he had told her in connectionwith the use of force by the Yonkers Police Department. Further, in response to questioning bythe County Court, the defendant stated, "I am honest with you, Your Honor . . .What I said on paper, it's the truth Your Honor. It is not, I never report the car stolen. I neverreport it. I report it to the insurance, but never report it to the police station. There is no alarm onthe car. That's the truth." The County Court then sentenced the defendant to the enhancedsentence.
A court may enhance a defendant's sentence for breach of the condition that he truthfullyanswer all of the questions asked of him by the probation department (see People vHicks, 98 NY2d 185 [2002]). Here, however, the County Court failed to conduct sufficientinquiry, in accordance with the requirements of due process, to conclude that the defendantbreached the condition of the plea agreement that he answer the probation department's questionstruthfully (see People v Outley, 80 NY2d 702 [1993]; People v Powell, 55 AD3d 632 [2008]; People v Green, 45 AD3d 780[2007]). Under the circumstances of this case, the defendant should have been given anopportunity to present evidence that his statements to the probation department did not contradicthis statements to the County Court during the plea proceedings (see People v Powell, 55AD3d at 634). Thus, the matter must be remitted to the County Court, Westchester County, for amore thorough inquiry pursuant to People v Outley (80 NY2d at 713) and adetermination on the issue of whether the defendant violated the condition of his plea agreementthat he be truthful with the probation department, and for resentencing thereafter.
The defendant's remaining contentions are without merit. Mastro, J.P., Florio, Leventhal andHall, JJ., concur.