| People v Coker |
| 2015 NY Slip Op 08257 [133 AD3d 1218] |
| November 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAnthony Coker, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered January 5, 2012. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a controlled substance in the third 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 possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]). We agree with defendant that "the waiver of the right toappeal is invalid because the minimal inquiry made by County Court was insufficient toestablish that the court engage[d] the defendant in an adequate colloquy to ensure that thewaiver of the right to appeal was a knowing and voluntary choice" (People v Jones, 107 AD3d1589, 1589 [2013], lv denied 21 NY3d 1075 [2013] [internal quotationmarks omitted]; see People vBox, 96 AD3d 1570, 1571 [2012], lv denied 19 NY3d 1024 [2012]).Further, the People correctly concede that the court failed to ensure "that the defendantunderstood that the right to appeal is separate and distinct from those rights automaticallyforfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]; seeJones, 107 AD3d at 1590).
Defendant failed to move to withdraw the plea or to vacate the judgment ofconviction on the ground that the court's Outley warning was not part of the pleaagreement and thus failed to preserve for our review his contention that the court erred inimposing an enhanced sentence (see People v Scott, 101 AD3d 1773, 1773-1774 [2012],lv denied 21 NY3d 1019 [2013]). In any event, that contention is without meritinasmuch as "the record establishes that defendant 'was clearly informed of theconsequences of his failure' to abide by the conditions of his plea agreement" (id.at 1774), and defendant stated that he understood that he was subject to an enhancedsentence in the event that he was "involved in any new criminal conduct." Evenassuming, arguendo, that defendant's contention that he was denied effective assistanceof counsel based upon counsel's failure to object to that condition survives his plea ofguilty, we reject that contention. The record establishes that defendant "receive[d] anadvantageous plea and nothing in the record casts doubt on the apparent effectiveness ofcounsel" (People v Ford, 86 NY2d 397, 404 [1995]; see People v Laurendi, 126AD3d 1401, 1402 [2015]; People v Parson, 122 AD3d 1441, 1442-1443 [2014]).
Defendant likewise failed to preserve for our review his contention that the courterred in failing to hold a hearing on the issue whether he violated the "new criminalconduct" condition of his plea agreement because he failed to request such a hearing (see People v Ali O., 115 AD3d1353, 1353-1354 [2014], lv denied 23 NY3d 960 [2014]). In any event, weconclude that "[t]he court was not required to conduct an evidentiary hearing todetermine the veracity of defendant's excuses," and that the court conducted a sufficientinquiry before determining that defendant had engaged in criminal conduct before itimposed the enhanced sentence (People v Albergotti, 17 NY3d 748, 750 [2011]).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J.,Centra, Peradotto, Lindley and Valentino, JJ.