| People v Ali O. |
| 2014 NY Slip Op 02195 [115 AD3d 1353] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AliO., Appellant. |
—[*1]
Appeal from an adjudication of the Supreme Court, Erie County (M. William Boller,A.J.), rendered September 10, 2012. Defendant was adjudicated a youthful offender uponhis plea of guilty to attempted robbery in the third degree.
It is hereby ordered that the adjudication so appealed from is unanimously affirmed.
Memorandum: On appeal from an adjudication based upon his plea of guilty ofattempted robbery in the third degree (Penal Law §§ 110.00, 160.05),defendant contends that Supreme Court erred in imposing an enhanced sentence withoutconducting a sufficient inquiry into his alleged violation of the conditions of the pleaagreement (see People v Outley, 80 NY2d 702, 713 [1993]). Because defendant"failed to request such a hearing and did not move to withdraw his plea on that ground,"his contention is unpreserved for our review (People v Scott, 101 AD3d 1773, 1773 [2012], lvdenied 21 NY3d 1019 [2013]). In any event, the court was not required to conductan inquiry because defendant was rearrested prior to sentencing, in violation of the pleaagreement, and he did not "deny that he committed the new offense[s] or otherwisechallenge the validity of his postplea arrest" (People v Mills, 90 AD3d 1518, 1519 [2011], lv denied18 NY3d 960 [2012]).
We agree with defendant that the waiver of the right to appeal does not encompasshis challenge to the severity of the sentence because the court, during the plea colloquy,merely advised him that he was waiving his right to appeal from the conviction (see People v Maracle, 19NY3d 925, 927 [2012]). We nevertheless reject defendant's contention that theenhanced sentence is unduly harsh and severe. Notably, although the court could havesentenced defendant as an adult because of his violation of the plea agreement, it adheredto its promise to adjudicate him a youthful offender. We also note that defendantparticipated in a violent attack upon the victim, and that this case was not his first contactwith the criminal justice system. Present—Scudder, P.J., Peradotto, Carni, Lindleyand Valentino, JJ.