| People v Botte |
| 2014 NY Slip Op 06219 [120 AD3d 1488] |
| September 18, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAnthony R. Botte, Jr., Appellant. |
Randolph V. Kruman, Cortland, for appellant.
Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Appeal from a judgment of the County Court of Chenango County (Sullivan, J.),rendered October 14, 2011, convicting defendant upon his plea of guilty of the crime ofrobbery in the first degree.
In satisfaction of a three-count indictment, defendant pleaded guilty to robbery in thefirst degree. Under the terms of the plea agreement, he was to be sentenced to five yearsin prison to be followed by five years of postrelease supervision and was to waive hisright to appeal. During the plea proceedings, County Court agreed to release defendanton a one-week furlough so that he could spend time with his children before sentencing,but admonished him that a condition of his release was that he not consume alcohol ordrugs. When he reappeared for sentencing, it was disclosed that defendant had testedpositive for THC. As a result, County Court imposed an enhanced sentence of six yearsin prison to be followed by five years of postrelease supervision. Defendant nowappeals.
Defendant argues that County Court erred in imposing an enhanced sentence withoutfirst conducting a hearing to determine if he, in fact, violated the conditions of his releaseby smoking marihuana while he was on furlough. We note that this issue has not beenpreserved due to defendant's failure to object to the enhanced sentence on this basis or tomove to withdraw his plea on this ground (see People v Wachtel, 117 AD3d 1203 [2014], lvdenied 23 NY3d 1044 [2014]; People vBucknor, 116 AD3d 1233, 1234 [2014]). In any event, County Court affordeddefendant an opportunity to respond and, given the positive test results and defendant's[*2]admission to smoking marihuana, assured itself thatthe enhanced sentence was based upon reliable and accurate information (see People v Kocher, 116AD3d 1301, 1302 [2014]; People v Paneto, 112 AD3d 1230, 1231 [2013], lvdenied 23 NY3d 1023 [2014]; People vSaucier, 69 AD3d 1125, 1126 [2010]). Defendant's claim that he smokedmarihuana while in jail does not compel a contrary conclusion under the circumstancespresented here. Therefore, we find no basis to disturb the sentence imposed.
Peters, P.J., McCarthy, Rose, Egan Jr. and Lynch, JJ., concur. Ordered that thejudgment is affirmed.