| People v Hassett |
| 2014 NY Slip Op 05272 [119 AD3d 1443] |
| July 11, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York, Respondent, vMichael Hassett, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered March 14, 2011. The judgment convicted defendant, upon his plea of guilty, ofcriminal contempt in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of criminal contempt in the first degree (Penal Law § 215.51 [b] [v]).We agree with defendant that the waiver of the right to appeal is invalid because" 'the minimal inquiry made by County Court was insufficient to establish thatthe court engage[d] the defendant in an adequate colloquy to ensure that the waiver ofthe right to appeal was a knowing and voluntary choice' " (People v Jones, 107 AD3d1589, 1589-1590 [2013], lv denied 21 NY3d 1075 [2013]; see People v Amir W., 107AD3d 1639, 1640 [2013];People v Box, 96 AD3d 1570, 1571 [2012], lv denied 19 NY3d 1024[2012]), and because "there is no basis upon which to conclude that the court ensured'that the defendant understood that the right to appeal is separate and distinct from thoserights automatically forfeited upon a plea of guilty' " (id., quoting People v Lopez, 6 NY3d248, 256 [2006]). In any event, we further agree with defendant that his contentionregarding the court's imposition of an enhanced sentence based on his alleged violationof a condition of the plea agreement would survive even a valid waiver of the right toappeal, inasmuch as "the court failed to advise defendant of . . . the conductthat could result in the imposition of an enhanced sentence before defendant waived hisright to appeal" (People v Sundown, 305 AD2d 1075, 1075-1076 [2003]).
Defendant failed to preserve for our review his contention that the condition of theplea agreement concerning the imposition of an enhanced sentence is invalid because itwas imposed after he entered his guilty plea but before the conclusion of the pleaproceeding (see CPL 470.05 [2]). He likewise failed to preserve for our reviewhis further contention that the court erred in imposing an enhanced sentence withoutconducting a sufficient inquiry into his alleged violation of the conditions of the pleaagreement and without holding an evidentiary hearing, inasmuch as he failed to object tothe sufficiency of the court's inquiry or to request a hearing, and he did not move towithdraw his plea on that ground (see People v Ali O., 115 AD3d 1353, 1353-1354 [2014],lv denied 23 NY3d 960 [2014]). We decline to exercise our power to reviewthose [*2]contentions as a matter of discretion in theinterest of justice (see CPL 470.15 [3] [c]). Finally, we reject defendant'scontention that the enhanced sentence is unduly harsh and severe.Present—Scudder, P.J., Fahey, Peradotto, Lindley and Sconiers,JJ.