| People v Straight |
| 2013 NY Slip Op 03353 [106 AD3d 1190] |
| May 9, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vRobert E. Straight, Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Chenango County(Sullivan, J.), rendered February 25, 2011, convicting defendant upon his plea of guiltyof the crime of burglary in the third degree.
Defendant was charged with burglary in the third degree, criminal possession ofstolen property in the third degree, grand larceny in the third degree and petit larcenystemming from allegations that he unlawfully entered and stole property from aconvenience store in the Town of Norwich, Chenango County. After County Courtdenied his motion to dismiss the indictment on the ground that the People failed toprovide reasonable notice of the grand jury proceeding, defendant pleaded guilty toburglary in the third degree in full satisfaction of the indictment. Under the terms of theplea agreement, he was to receive a prison sentence of 2½ to 5 years, to runconcurrently with a prison sentence of 1½ to 3 years to be imposed on an unrelatedcharge,[FN1][*2]waive his right to appeal and pay restitution in theamount of $1,501.96. During the plea proceeding, County Court granted defendant'srequest for a one-week furlough prior to sentencing, cautioning him that if he did"anything . . . inappropriate in terms of violating the law" during that time,his sentence could be enhanced. Defendant was thereafter arrested and charged withburglary in the third degree, a crime to which he confessed. As a result, County Courtimposed an enhanced sentence of 3½ to 7 years in prison to run consecutively witha prison term of 2 to 4 years on the unrelated charge.[FN2]Defendant now appeals.
By pleading guilty, defendant forfeited his claim that his right to testify before thegrand jury was violated (seePeople v Johnson, 97 AD3d 990, 991 [2012]; People v Dennis, 39 AD3d1028, 1029 [2007]; Peoplev Steed, 17 AD3d 928, 929 [2005], lv denied 5 NY3d 770 [2005];People v Kelone, 292 AD2d 640, 641 [2002], lv denied 98 NY2d 677[2002]). Defendant's claim of ineffective assistance of counsel also fails to survive hisguilty plea, as he does not allege nor does the record reveal that his plea was impacted inany way by counsel's allegedly deficient performance (see People v Parilla, 8 NY3d654, 660 [2007]; People v Petgen, 55 NY2d 529, 534-535 [1982]; People v Heier, 73 AD3d1392, 1393 [2010], lv denied 15 NY3d 805 [2010]).
Defendant's contention that County Court impermissibly enhanced his sentence,which was preserved by his objection at sentencing (see People v Davis, 72 AD3d 1292, 1293 [2010]; see generally People vDePalma, 99 AD3d 1116, 1117 [2012], lv denied 20 NY3d 1010[2013]), is lacking in merit. "An agreed-upon sentence may be enhanced if it isappropriately established that the defendant has violated the conditions of the pleaagreement" (People vDavis, 30 AD3d 893, 894 [2006], lv denied 7 NY3d 847 [2006][citations omitted]; accordPeople v Bove, 64 AD3d 812, 812-813 [2009], lv denied 13 NY3d 858[2009]; see People vMcDermott, 68 AD3d 1453, 1453 [2009]). Here, despite defendant's assertionsto the contrary, County Court's admonishment during the plea proceeding was neithervague nor unclear. While the court advised defendant of certain specific conditions of hisrelease related to the consumption and possession of alcohol and drugs, it also explicitlywarned him that he could be subject to an enhanced sentence if he did anything thatviolates the law (see People vWhaley, 74 AD3d 1641, 1642 [2010], lv denied 15 NY3d 856 [2010];People v Ayen, 55 AD3d1305, 1306 [2008]; People v Barilla, 289 AD2d 876, 877 [2001]).Furthermore, when he appeared for sentencing, defendant did not deny that he hadcommitted the new offense, and the felony complaint, police report and defendant'swritten confession provided County Court with adequate assurance that there was alegitimate basis for defendant's arrest and sufficiently established that he had violated thelaw (see People v Valencia,3 NY3d 714, 715-716 [2004]; People v Hunter, 98 AD3d 1189, 1190 [2012], lvdenied 20 NY3d 1012 [2013]; People v Delgado, 45 AD3d 496, 496 [2007], lv deniedsub nom., People v Dewindt, 9 NY3d 1032 [2008]; People v Davis, 30AD3d at 895). Thus, County Court's imposition of an enhanced sentence wasappropriate.
Rose, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Defendant entered thisguilty plea simultaneously with his plea of guilty to the unrelated charge, and isappealing from the judgment convicting him of such unrelated charge in a separateappeal before this Court (People v Straight, 106 AD3d 1192 [2013] [decidedherewith]).
Footnote 2: In light of CountyCourt's imposition of the enhanced sentence, defendant was no longer required to waivehis right to appeal.