People v Walker

2015 NY Slip Op 03580 [127 AD3d 1506]

April 30, 2015

Appellate Division, Third Department

As corrected through Wednesday, June 3, 2015

[*1]

The People of the State of New York, Respondent, vWilliam Walker, Appellant.

Theodore J. Stein, Woodstock, for appellant.

D. Holley Carnright, District Attorney, Kingston (Danielle Scarduzio of counsel), forrespondent.

Rose, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered August 22, 2013, which resentenced defendant upon his plea of guilty of thecrime of possessing a sexual performance by a child.

Defendant was convicted upon his guilty plea of possessing a sexual performance bya child and, at the time of the plea, County Court (Bruhn, J.) admonished defendant thatit would not be bound by the sentencing agreement if he "commit[ted] any new crimes"or was "arrested again for any reason." He allegedly violated the admonishments andreceived an enhanced sentence of 11/3 to 4 years in prison. Upon appeal,we vacated the sentence and remitted the matter so that County Court could conduct aninquiry into the scope of the admonishments "and whether defendant was entitled to ahearing to establish any violation of" them (101 AD3d 1350, 1351 [2012]). County Court(Williams, J.) conducted a hearing and determined that defendant had indeed violated theadmonishments. As such, the court resentenced defendant to a prison term of11/3 to 4 years. Defendant now appeals.

We affirm. Inasmuch as defendant has served the enhanced sentence in full, hiscontention that County Court improperly imposed it is academic (see People v Nicholson, 31AD3d 468, 469 [2006], lv denied 7 NY3d 850 [2006]). In any event, ourreview of the hearing transcript reveals that County Court complied with the mandatesset out in People v Outley (80 NY2d 702, 713 [1993]), and we find no basis todisturb the determination that defendant violated [*2]theadmonishments. Defendant further asserts that the admonishments were not a proper partof his guilty plea. That argument, to the extent that it may properly be advanced upon thisappeal from a resentence (cf. CPL 450.30), is unpreserved because defendantfailed to advance it before County Court (see People v Radek, 202 AD2d 847,848-849 [1994], lv denied 83 NY2d 914 [1994]).

Peters, P.J., Lahtinen and Devine, JJ., concur. Ordered that the judgment isaffirmed.