| People v Verbitsky |
| 2011 NY Slip Op 09400 [90 AD3d 1516] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v PaulVerbitsky, Appellant. |
—[*1] John H. Crandall, District Attorney, Herkimer (Jacquelyn M. Asnoe of counsel), forrespondent.
Appeal from a judgment of the Herkimer County Court (Patrick L. Kirk, J.), rendered August4, 2008. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a plea of guilty, ofattempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]). Wereject defendant's contention that County Court erred in imposing an enhanced term ofincarceration based on postplea acts committed by defendant. "[T]o satisfy due process, asentencing court must, prior to imposing the prison alternative pursuant to a plea agreement,conduct an inquiry sufficient to conclude that a violation of the plea agreement occurred" (People v Valencia, 3 NY3d 714,715 [2004]; see People v Outley, 80 NY2d 702, 713 [1993]), and the court made therequisite inquiry here (see Valencia, 3 NY3d at 715; People v McGrath, 67 AD3d 1475, 1476 [2009], lv denied14 NY3d 803 [2010]). We reject defendant's further contention that the sentence is unduly harshor severe. Finally, defendant failed to preserve for our review his contention that the sentenceimposed constituted cruel and unusual punishment (see People v Rogers, 63 AD3d 1631 [2009], lv denied 13NY3d 749 [2009]; People v Clark,61 AD3d 1426, 1427 [2009], lv denied 12 NY3d 913 [2009]) and, in any event, thatcontention lacks merit (see People vHolmquist, 5 AD3d 1041 [2004], lv denied 2 NY3d 800 [2004]).Present—Centra, J.P., Peradotto, Carni, Lindley and Sconiers, JJ.