| People v Moore |
| 2017 NY Slip Op 03078 [149 AD3d 1349] |
| April 20, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v RicardoMoore, Appellant. |
Arthur G. Dunn, Troy, for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered May22, 2014, convicting defendant upon his plea of guilty of the crime of attempted criminalpossession of a controlled substance in the third degree.
Pursuant to a plea agreement, defendant waived indictment and pleaded guilty to a superiorcourt information charging him with attempted criminal possession of a controlled substance inthe third degree. The agreement included a waiver of appeal and provided that defendant wouldbe sentenced to a prison term not to exceed four years to be followed by three years ofpostrelease supervision. He was released under supervision pending sentencing and, whilereleased, allegedly violated the condition of his release that he refrain from committing additionalcrimes or illegal activity by being arrested on drug sale charges. Following several adjournments,the parties reached a renegotiated agreement providing for defendant to receive a prison sentenceof seven years followed by three years of postrelease supervision, in full satisfaction of theoriginal plea as well as the new charges. County Court imposed the agreed-upon sentence, anddefendant now appeals.
Defendant argues that County Court erred in imposing what he characterizes as an"enhanced" sentence because he was not warned on the record at the time of his guilty plea of theconsequences of being arrested or committing additional crimes while released pendingsentencing, and he was not offered an opportunity to withdraw his guilty plea. While this issue isnot precluded by defendant's earlier appeal waiver, it was not preserved for our review due to hisfailure to object on this ground at sentencing or move to withdraw his guilty plea on this basis(see People v Nesbitt, 144 AD3d1329, 1329 [2016]). In any event, the record reflects that the parties renegotiated the terms ofthe plea agreement to provide that the plea would satisfy all of the new charges in exchange for ahigher prison sentence of seven years with three years of postrelease supervision. As the highersentence was not an "enhancement," but rather the product of a renegotiated agreement to whichall parties consented, the court was obligated neither to impose the original agreed-upon sentencenor offer defendant an opportunity to withdraw his plea (see People v Dunsmore, 275AD2d 861, 862-863 [2000], lv denied 95 NY2d 934 [2000]). Defendant's remainingclaims also lack merit.
Peters, P.J., McCarthy, Devine, Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.