| People v Saaverda |
| 2015 NY Slip Op 07297 [132 AD3d 701] |
| October 7, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Francisco Saaverda, Appellant. |
Lynn W.L. Fahey, New York, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Jeanette Lifschitz, and Aurora Alvarez-Calderon of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Modica, J.), rendered March 19, 2013, convicting him of burglary in the second degree,upon his plea of guilty, and sentencing him to a determinate term of imprisonment of 15years, followed by a period of postrelease supervision.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the sentence imposed from a determinate term of imprisonment of 15years to a determinate term of imprisonment of eight years; as so modified, the judgmentis affirmed.
Contrary to the defendant's contention, he was not deprived of his right to dueprocess at a hearing that was conducted to determine whether he violated a condition ofthe plea agreement (see People vButler, 49 AD3d 894, 895 [2008]; see also People v Cousar, 128 AD3d 716 [2015]; People v Youmans, 106 AD3d1036 [2013]; People vArrington, 94 AD3d 903 [2012]; People v Miles, 268 AD2d 489[2000]). Here, the sentencing court conducted an inquiry sufficient to conclude that aviolation of the plea agreement had occurred and, therefore, the court satisfied therequirements of due process (seePeople v Valencia, 3 NY3d 714, 715 [2004]; People v Outley, 80 NY2d702 [1993]; People vArrington, 94 AD3d 903 [2012]).
Under the circumstances of this case, the defendant's purported waiver of his right toappeal does not extend to the imposition of the enhanced sentence that was imposedupon him (see People vPianaforte, 126 AD3d 815, 816 [2015]; see also People v Maracle, 19 NY3d 925 [2012]). Thus, thewaiver does not preclude review of his excessive sentence claim.
The enhanced sentence imposed was excessive to the extent indicated herein.Leventhal, J.P., Chambers, Austin and Miller, JJ., concur.