| People v Smalls |
| 2011 NY Slip Op 05373 [85 AD3d 1450] |
| June 23, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Gilbert SmallsIII, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Peter N. DeLucia of counsel), forrespondent.
Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered June 7,2010, convicting defendant upon his plea of guilty of the crime of grand larceny in the fourthdegree.
Defendant was charged in an indictment with grand larceny in the fourth degree. He pleadedguilty to that charge in full satisfaction of the indictment and other pending charges. Under theterms of the plea agreement, defendant was to be sentenced as a second felony offender to1½ to 3 years in prison. During the plea proceedings, County Court warned defendant thatif he was arrested and charged with any other crimes prior to sentencing, he could receive themaximum sentence. Thereafter, at defendant's request, sentencing was adjourned to allow himtime to get married and, when defendant did not show up at the next scheduled appearance,County Court issued a warrant for his arrest. When defendant finally appeared in court, CountyCourt informed defendant that it was aware that he had been arrested and charged with criminalimpersonation. Apparently as a result of this arrest, the court imposed an enhanced sentence upondefendant of 2 to 4 years in prison. Defendant now appeals.
Defendant asserts that County Court erred in imposing an enhanced sentence without firstaffording him an opportunity to withdraw his plea because it, among other things, did not makean adequate inquiry into the validity of the postplea arrest. Although defendant failed to preservethis issue by either objecting to the enhanced sentence or moving to withdraw his guilty plea, weexercise our interest of justice jurisdiction to take corrective action as we find that [*2]defendant's argument has merit (see CPL 470.15 [6] [a]). Asthe Court of Appeals instructed in People v Outley (80 NY2d 702, 713 [1993], certdenied sub nom. Maietta v Artuz, 519 US 964 [1996]), "[w]hen an issue is raised concerningthe validity of the postplea charge or there is a denial of any involvement in the underlying crime,the court must conduct an inquiry at which the defendant has an opportunity to show that thearrest is without foundation." Notably, while the nature of the inquiry is within the court'sdiscretion, it "must be of sufficient depth . . . so that the court can be satisfied. . . of the existence of a legitimate basis for the arrest on [the subject] charge"(id. at 713). Here, after County Court informed defendant that it was aware of hiscriminal impersonation arrest, defendant responded, "I didn't give them a false name, I gave themSmalls and somebody told them another name." This was clearly a denial of the charge, butCounty Court made no further inquiry concerning defendant's postplea arrest at that time or at alater date when defendant was actually sentenced. As we find that County Court failed toascertain whether there was a legitimate basis for the postplea arrest, the matter must be remittedfor a new sentencing hearing (see Peoplev Jenkins, 29 AD3d 1177, 1178 [2006]; People v McClemore, 276 AD2d 32, 36[2000]).
Spain, J.P., Rose, Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by vacating the sentence imposed;matter remitted to the County Court of Broome County for resentencing; and, as so modified,affirmed.