| People v Woods |
| 2017 NY Slip Op 04176 [150 AD3d 1560] |
| May 25, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v JosephWoods, Appellant. |
G. Scott Walling, Schenectady, for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered May 14,2015 in Albany County, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the fourth degree.
In satisfaction of a two-count indictment, defendant pleaded guilty to criminal possession ofa controlled substance in the fourth degree and he waived his right to appeal, both orally and inwriting. Under the terms of the plea agreement, he was to be sentenced as a second felonyoffender to 4
[*2] Turning firstto defendant's challenge to the enhancement of the sentence, we note that "[a] court may enhancean agreed-upon sentence after it is established that the defendant violated a condition of the pleaagreement" (People v McDermott,68 AD3d 1453, 1453 [2009]; seePeople v Davis, 30 AD3d 893, 894 [2006], lv denied 7 NY3d 847 [2006]). Here,Supreme Court enhanced the sentence based on the charge of criminal sale of a controlledsubstance that was filed against defendant after he entered his guilty plea. Defendant contendsthat, inasmuch as this charge did not result in his physical arrest, the conditions of the pleaagreement were not violated and Supreme Court should have afforded him the opportunity towithdraw his plea before imposing an enhanced sentence. We find this argument to beunpersuasive. As is evident from the record, the no-arrest condition was imposed by the court todiscourage defendant from committing additional crimes subsequent to the entry of his guiltyplea while he was out on bail pending sentencing. Defendant, however, was arrested during thistime for a crime that he committed prior to entering his guilty plea and he was incarcerated as aresult. Defendant's incarceration obviated the need to physically detain him on the charge ofcriminal sale of a controlled substance that arose from his post-plea criminal conduct. Thiscriminal conduct, which resulted in an indictment, was implicitly proscribed by the conditions ofthe plea agreement and provided a legitimate basis for enhancement of the sentence.Accordingly, Supreme Court did not err in imposing an enhanced sentence under thecircumstances presented (see People v Therrien, 301 AD2d 751, 752 [2003], lvdenied 99 NY2d 633 [2003]; see also People v Davis, 30 AD3d at 895).
Defendant also challenges the severity of the enhanced sentence. Initially, we note that he isnot precluded by his waiver of the right to appeal from raising this claim inasmuch as we findthat the waiver is invalid due to the absence of any indication in the record that defendant wasadvised of and understood the nature of the rights that he was waiving or was informed that theright to appeal was separate and distinct from the rights forfeited by a guilty plea (see People v Lopez, 6 NY3d 248,256-257 [2006]; People v Henry,133 AD3d 1085, 1085-1086 [2015]; People v Anderson, 129 AD3d 1385, 1385 [2015], lvdenied 26 NY3d 965 [2015]). Turning to the merits, we are not persuaded that the enhancedsentence was either harsh or excessive given defendant's criminal history, which includes a priorviolent felony, and his continued participation in drug-related activity after entering his guiltyplea. Accordingly, we find no extraordinary circumstances nor any abuse of discretion warrantinga reduction of the enhanced sentence in the interest of justice (see People v Anderson,129 AD3d at 1385; see also People vWhite, 24 AD3d 817, 817 [2005]).
McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.