| People v Pianaforte |
| 2015 NY Slip Op 01969 [126 AD3d 815] |
| March 11, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Pianaforte, Appellant. |
Seymour W. James, New York, N.Y. (Eve Kessler of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and SethLieberman of counsel; Gregory Musso on the memorandum), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Jeong, J.), rendered December 27, 2012, convicting him of burglary in the third degree,upon his plea of guilty, and imposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by vacating the sentence imposed; as so modified, the judgment is affirmed, andthe matter is remitted to the Supreme Court, Kings County, for resentencing inaccordance herewith.
The defendant's purported waiver of his right to appeal was invalid (see People v Bradshaw, 18NY3d 257, 265 [2011]; People v DeSimone, 80 NY2d 273, 283 [1992]) and,in any event, does not extend to the imposition of an enhanced sentence (see People v Muhammad, 47AD3d 951, 952 [2008]). Thus, it does not preclude review of his excessive sentenceclaim.
The defendant pleaded guilty to burglary in the third degree in exchange for theSupreme Court's promise that it would sentence him to the agreed-upon indeterminateprison term of 2 to 4 years (see Penal Law § 70.06 [4] [b]; [3] [d]).As a condition of the court's promised sentence, the defendant agreed (1) to cooperatewith the Department of Probation (hereinafter the DOP), (2) to appear on any scheduledcourt dates, and (3) to remain arrest free. The defendant appeared for his interview withthe DOP and answered all of the questions asked, but in doing so, he also denied hisguilt. However, he did not express any intention to withdraw his plea of guilty. Atsentencing, the defendant contended that he did not deny his guilt to the DOP.Nonetheless, the court found that the defendant violated the "cooperation" condition bylying to the DOP. The court then imposed an enhanced sentence without first giving thedefendant an opportunity to ask to withdraw his plea of guilty.
Although the violation of an explicit and objective plea condition that was acceptedby the defendant can result in the imposition of an enhanced sentence (see People vHicks, 98 NY2d 185, 189 [2002]; People v Becker, 80 AD3d 795, 796 [2011]; People v Coffey, 77 AD3d1202, 1203 [2010]), here, the defendant's denial of his guilt to the DOP was not aviolation of the condition that he cooperate with [*2]theDOP (see People v Zeldine,121 AD3d 928 [2014]). While a court is free to impose a condition requiring adefendant not to deny his or her guilt when interviewed by the DOP, the Supreme Courtin the instant matter did not impose such a condition (see People v Zeldine, 121 AD3d 928, 928 [2014]).Accordingly, it erred in imposing an enhanced sentence based on its conclusion that thedefendant violated a condition of the plea of guilty (see People v Zeldine, 121 AD3d 928 [2014]; People v Becker, 80 AD3d795 [2011]).
Accordingly, we vacate the sentence imposed, and remit the matter to the SupremeCourt, Kings County, to allow the Supreme Court to impose the sentence promised to thedefendant at the time of his plea. Eng, P.J., Dillon, Leventhal, Cohen and Maltese, JJ.,concur.