| People v Harris |
| 2016 NY Slip Op 05760 [142 AD3d 557] |
| August 10, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Akeem Bethea Harris, Also Known as Tony Bethea,Appellant. |
Nicole D. Gadbois, Poughkeepsie, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, NY (Robert H. Middlemiss ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered October 4, 2013, convicting him of attempted criminal possession ofa weapon in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid (see People v Lopez, 6 NY3d248, 256 [2006]). The record does not demonstrate that the defendant "grasped theconcept of the appeal waiver and the nature of the right he was forgoing" (People v Bradshaw, 18 NY3d257, 267 [2011]; see Peoplev Springer, 109 AD3d 557 [2013]; People v Johnson, 109 AD3d 489 [2013]; People v Collins, 104 AD3d785 [2013]). Notwithstanding the defendant's execution of the written waiver form,it cannot be said that he knowingly, intelligently, and voluntarily waived his right toappeal (see People v Elmer,19 NY3d 501, 510 [2012]; People v Bradshaw, 18 NY3d at 267; People v Singleton, 129 AD3d748 [2015]; People vJohnson, 113 AD3d 635 [2014]; People v Springer, 109 AD3d at557-558; People v Vasquez,101 AD3d 1054, 1055 [2012]).
Although the defendant's claim that the County Court erred in imposing a sentencegreater than what had been promised in the original plea agreement would survive even avalid waiver of the right to appeal (see People v Bracy, 131 AD3d 538, 539 [2015]; People v Youmans, 106 AD3d1036 [2013]; People vArrington, 94 AD3d 903 [2012]), the defendant is, in any event, not entitled torelief on this claim. The defendant violated the conditions of his plea agreement that henot be rearrested between the time of the plea and sentencing, and that he timely appearfor his interview with the probation department. Under these circumstances, the courtwas not bound by its original promise, and its imposition of an enhanced sentence wasproper (see People v Hicks, 98 NY2d 185 [2002]; People v Figgins, 87NY2d 840, 841 [1995]; Peoplev Mazyck, 117 AD3d 1084, 1085 [2014]; People v Patterson, 106 AD3d 757 [2013]; People v Bacchus, 103 AD3d744, 745 [2013]; People v White, 215 AD2d 791 [1995]).
The defendant's remaining contention is without merit. Chambers, J.P., Dickerson,Duffy and LaSalle, JJ., concur.