| People v Guzman-Hernandez |
| 2016 NY Slip Op 00513 [135 AD3d 957] |
| January 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jeovani Guzman-Hernandez,Appellant. |
Robert C. Mitchell, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Thomas C. Costello of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Cohen, J.), rendered August 6, 2013, convicting him of gang assault in the first degree,upon his plea of guilty, and sentencing him to a determinate term of imprisonment of 10years plus a period of five years of postrelease supervision.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the sentence imposed to a determinate term of imprisonment of sevenyears plus a period of five years of postrelease supervision; as so modified, the judgmentis affirmed.
An enhanced sentence may be imposed on a defendant who, in violation of anexpress condition of a plea agreement, has failed to truthfully answer questions during aprobation department interview (see People v Hicks, 98 NY2d 185, 187 [2002]).Due process, however, requires that, before imposing an enhanced sentence, the courtconduct an inquiry sufficient for it to determine that the defendant indeed violated theplea condition (see People vValencia, 3 NY3d 714, 715 [2004]; People v Outley, 80 NY2d 702, 712[1993]; People v Saaverda,132 AD3d 701, 701-702 [2015]). Here, the defendant admitted under oath at theplea proceeding that he had participated in the crime. Moreover, the record of the pleaproceeding establishes that the defendant acknowledged, understood, and accepted thecondition that he truthfully answer questions at his interview with the probationdepartment (see People vMazyck, 117 AD3d 1084, 1085 [2014]). At his interview, however, thedefendant equivocated and denied being present during part of the incident. Atsentencing, the County Court conducted an inquiry sufficient for it to determine that thedefendant had understood the questions he was asked at the probation departmentinterview and had violated the plea agreement by answering untruthfully. Accordingly,the court did not err by imposing an enhanced sentence (see People v Bragg, 96 AD3d1071, 1071-1072 [2012]; People v Butler, 49 AD3d 894, 895 [2008]; cf. People v Perez, 95 AD3d780, 780 [2012]; People vZobe, 82 AD3d 1017, 1018-1019 [2011]).
We conclude, however, under the circumstances of this case, that the enhancedsentence was excessive to the extent indicated herein (see People v Suitte, 90AD2d 80 [1982]). Balkin, J.P., Chambers, Cohen and Hinds-Radix, JJ., concur.