People v Bouck

2017 NY Slip Op 06680 [153 AD3d 1522]

September 28, 2017

Appellate Division, Third Department

As corrected through Wednesday, November 1, 2017

[*1]

The People of the State of New York, Respondent, v DavidBouck, Appellant.

G. Scott Walling, Queensbury, for appellant.

Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.

Mulvey, J. Appeal from a judgment of the County Court of Schenectady County (Sypnewski,J.), rendered September 18, 2015, convicting defendant upon his plea of guilty of the crimes offailure to register or verify as a sex offender and possessing a sexual performance by a child.

In satisfaction of a 10-count indictment, defendant pleaded guilty to the crimes of failure toregister or verify as a sex offender and possessing a sexual performance of a child and waived hisright to appeal. Pursuant to the terms of the plea agreement, defendant would be sentenced, as asecond felony offender, to consecutive prison terms of 1 to 3 years and 11/2 to 3years, respectively. County Court advised defendant that he was required to be truthful andcooperative with the Probation Department in the preparation of a presentence investigationreport, otherwise the court would not be bound by the sentencing commitment and could imposean enhanced sentence. At sentencing, the court denied defendant's pro se motion to withdraw hisguilty plea on the ground that he wished to testify before the grand jury. Furthermore, the courtdetermined that defendant violated the condition that he be truthful with the ProbationDepartment inasmuch as, during the interview, he denied culpability for the crimes to which hehad pleaded guilty and, finding that it was no longer bound by the terms of the plea agreement,the court imposed an enhanced sentence of 21/3 to 7 years on the failure to registerconviction and 2 to 4 years for possessing a sexual performance by a child, to run consecutively.Defendant appeals.

We are unpersuaded by defendant's contention that County Court abused its discretion [*2]in imposing an enhanced sentence without first permittingdefendant to withdraw his plea. The record belies defendant's contention that the condition thathe be truthful with the Probation Department was not part of the plea agreement. County Courtexplicitly advised defendant of such condition during the plea colloquy, and defendantacknowledged that he understood the consequences in the event he failed to comply with thatcondition. As the court "informed [defendant] at the time of his plea that it could impose adifferent sentence if he failed to meet [the] specified condition[ ]," it was free to impose theenhanced sentence without affording defendant an opportunity to withdraw his plea (People v Kinch, 15 AD3d 780, 781[2005]; see People v Coffey, 77AD3d 1202, 1203-1204 [2010], lv denied 18 NY3d 882 [2012]; People v Faulkner, 54 AD3d 1134,1135 [2008], lv denied 11 NY3d 854 [2008]).

To the extent that defendant contends that he did not receive the effective assistance ofcounsel, the alleged deficiencies on the part of defense counsel do not implicate the voluntarinessof the plea and, therefore, are precluded by the unchallenged waiver of the right to appeal (see People v Mahon, 148 AD3d1303, 1303 [2017]; People vWhite, 145 AD3d 1324, 1325 [2016]). Finally, given the basis upon which defendantmoved to withdraw his plea, we find no error in County Court summarily denying the motionwithout further scrutiny to determine the existence of a legitimate question as to the voluntarinessof defendant's plea (see People vBrown, 14 NY3d 113, 118 [2010]; People v Farnsworth, 140 AD3d 1538, 1540 [2016]).

Peters, P.J., Egan Jr., Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.