| People v Paneto |
| 2013 NY Slip Op 08551 [112 AD3d 1230] |
| December 26, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JosePaneto, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County(Herrick, J.), rendered June 1, 2011, convicting defendant upon his plea of guilty of thecrime of criminal possession of a controlled substance in the third degree.
In March 2011, in satisfaction of a five-count indictment, defendant pleaded guilty toone count of criminal possession of a controlled substance in the third degree. As part ofthe plea agreement, County Court informed defendant of his maximum sentenceexposure as a predicate felon and agreed not to impose a sentence greater than 3½years in prison followed by 1½ years of postrelease supervision. At that time, thecourt informed defendant before releasing him pending sentencing that, if he werearrested for any reason prior to the sentencing date, the court would no longer be boundby the sentencing commitment. Thereafter, while released awaiting sentencing, defendantwas arrested on new felony drug charges in Warren County. The court ultimately foundthat defendant violated the terms of the plea agreement and sentenced him, as a secondfelony offender, to an enhanced prison term of 5½ years followed by two years ofpostrelease supervision. This appeal followed.
Initially, we are unpersuaded by defendant's claim that County Court failed toconduct an adequate inquiry into defendant's post-plea arrest before imposing anenhanced sentence. Our review confirms that the court made an inquiry of sufficientdepth so as to "be satisfied—not of [*2]defendant'sguilt of the new criminal charge[s] but of the existence of a legitimate basis for the arreston th[ose] charge[s]" (People v Outley, 80 NY2d 702, 713 [1993]; see People v Purcelle, 107AD3d 1050, 1051 [2013]). Here, after defendant was initially questioned regardingthe new arrest, he denied involvement and the court promptly ordered an adjournment inorder to find out if this was a "viable arrest" in violation of the plea agreement. Atdefendant's subsequent appearance, the court was in receipt of a May 2011 nine-countindictment charging defendant with numerous crimes, including criminal possession of acontrolled substance in the third degree. Defendant's counsel then relayed that defendantentered a "not guilty plea" to the new charges, but also admitted that defendant'sundisputed "arrest alone would be a violation of the plea agreement" and requestedleniency as to the sentence. When ask to respond, defendant stated that he agreed withhis counsel's statements. Although defendant maintains that a more formalOutley hearing should have been directed, this claim is unpreserved due to hisfailure on this record "to seek such a hearing or otherwise move to withdraw his plea orvacate the judgment of conviction" (People v Saucier, 69 AD3d 1125, 1126 [2010]). In anyevent, it is apparent from the record that the court "imposed the enhanced sentence onlyafter it was sufficiently assured that the information upon which it based the sentencewas reliable and accurate" (People v French, 72 AD3d 1397, 1398 [2010], lvdenied 15 NY3d 804 [2010]).
Lastly, defendant maintains that the enhanced sentence was harsh and excessiveunder the circumstances. We disagree. Given defendant's demonstrated disregard of theno-arrest restriction in the plea agreement, coupled with his criminal history and "the factthat the enhanced sentence was less than the statutory maximum, we find noextraordinary circumstances justifying a reduction of the sentence in the interest ofjustice" (People v Douglas,2 AD3d 1050, 1051 [2003], lv denied 2 NY3d 761 [2004]; see People v Clapper, 87AD3d 1227, 1227-1228 [2011]; People v White, 24 AD3d 817, 817 [2005]; seealso Penal Law § 70.70 [3] [b] [i]).
Lahtinen, J.P., Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.