| People v Patterson |
| 2013 NY Slip Op 03113 [106 AD3d 757] |
| May 1, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Larry Patterson, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbartand Anne Grady of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County(Collini, J.), rendered February 25, 2010, convicting him of assault in the second degree,criminal possession of stolen property in the fourth degree, and criminal possession ofstolen property in the fifth degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
A general waiver of the right to appeal does not foreclose review of the defendant'scontention that his post-plea conduct did not warrant an enhanced sentence (see People v Butler, 49 AD3d894, 895 [2008]; People vKitchens, 46 AD3d 577 [2007]; People v Garner, 18 AD3d 669, 669-670 [2005]; People v Stowe, 15 AD3d597, 598 [2005]). However, a failure to abide by a condition of a plea agreement totruthfully answer questions asked by the probation department is an appropriate basis forthe enhancement of the defendant's sentence (see People v Hicks, 98 NY2d 185[2002]). The condition of the defendant's plea that he cooperate with the probationdepartment was explicit and objective, and was acknowledged, understood, and acceptedby the defendant as part of the plea agreement (see People v Butler, 49 AD3d at895; People v Blackwell,62 AD3d 896, 897 [2009]). The defendant's violation of that condition, by refusingto be interviewed by the probation officer, allowed the Supreme Court to impose theenhanced sentence.
The defendant's valid waiver of his right to appeal forecloses appellate review of hischallenge, raised in his pro se supplemental brief, to the hearing court's suppressiondetermination (see People vKidd, 100 AD3d 779 [2012], lv denied 20 NY3d 1062 [2013];People v Kemp, 94 NY2d 831, 833 [1999]; People v Holland, 44 AD3d 874 [2007]; People vBrathwaite, 263 AD2d 89, 91 [2000]).
Since the defendant's claim of ineffective assistance of counsel, raised in his pro sesupplemental brief, does not directly involve the negotiation of his plea of guilty, thedefendant forfeited that claim by pleading guilty (see People v Turner, 40 AD3d 1018, 1019 [2007];People v Petgen, 55 NY2d 529, 535 n 3 [1982]; People v Silent, 37 AD3d625 [2007]; People vCumba, 32 AD3d 444 [2006]).[*2]
The defendant's claims in his pro se supplementalbrief that the felony complaint and the indictment were jurisdictionally insufficientsurvive his plea of guilty (see People v Hansen, 95 NY2d 227, 230 [2000]) andhis waiver of his right to appeal (see People v Crummell, 84 AD3d 1393 [2011]; Peoplev Libby, 246 AD2d 669 [1998]). However, these claims are without merit (seeCPL 100.15, 100.40; People v Iannone, 45 NY2d 589, 600 [1978];People v Gerber, 182 AD2d 252, 266-267 [1992]). Mastro, J.P., Hall, Lott andSgroi, JJ., concur.