| People v Turner |
| 2018 NY Slip Op 00862 [158 AD3d 892] |
| February 8, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Daquan Turner, Appellant. |
George J. Hoffman Jr., Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered July 10, 2015, convicting defendant upon his plea of guilty of the crime of attemptedcriminal possession of a forged instrument in the first degree.
On January 14, 2015, in satisfaction of a multicount indictment, defendant pleaded guilty tothe reduced charge of attempted criminal possession of a forged instrument in the first degree andexecuted a waiver of appeal in open court. Under the terms of the plea agreement, defendant wasto be sentenced to 1 to 3 years in prison. In addition, County Court admonished defendant that itwould not be bound by the sentencing commitment if he did anything between the time of hisplea and sentencing that, among other things "violate[d] the law"; if he did, he could receive anenhanced sentence of 2
We affirm. Initially, we reject defendant's contention that his waiver of the right to appealwas invalid. The record demonstrates that defendant was advised that an appeal waiver was acondition of the plea agreement (seePeople v Bateman, 151 AD3d 1482, 1483 [2017]; People v Belile, 137 AD3d 1460, 1461 [2016]), and, during theplea colloquy, County Court [*2]distinguished the right to appealfrom the trial-related rights automatically forfeited by a guilty plea (see People v Lopez, 6 NY3d 248,256-257 [2006]; People v Rushlow,137 AD3d 1482, 1483 [2016]). Defendant acknowledged his understanding of theconsequences of the appeal waiver and, in open court, executed a written appeal waiver, whichdefendant reviewed with his counsel. Under these circumstances, we find that defendant'scombined oral and written waiver of the right to appeal was knowing, intelligent and voluntary(see People v Sanders, 25 NY3d337, 339-341 [2015]; People vAdams, 153 AD3d 1449, 1450 [2017]; People v Hopper, 153 AD3d 1045, 1046 [2017], lv denied30 NY3d 1061 [2017]). Thus, defendant's challenge to his enhanced sentence as harsh andexcessive is precluded by the valid appeal waiver inasmuch as County Court advised him of theconditions of the plea and the consequences for violating those conditions (see People vAdams, 153 AD3d at 1451; Peoplev Gilbert, 145 AD3d 1196, 1197 [2016], lv denied 28 NY3d 1184 [2017]).
Defendant contends that County Court abused its discretion in imposing an enhancedsentence because the record does not reflect that he violated the condition of his postplea releaserequiring him to refrain from violating the law. Preliminarily, defendant is not precluded by hisvalid appeal waiver from raising this claim (see People v Rushlow, 137 AD3d at 1483;People v Tole, 119 AD3d 982,984 [2014]), and he has preserved it by his objection during sentencing (see People v Straight, 106 AD3d1190, 1191 [2013]; People vDavis, 72 AD3d 1292, 1293 [2010]). "To allow County Court to impose a sentenceother than the one agreed upon as part of the plea bargain, the People were required to show by apreponderance of the evidence that defendant violated the law" (People v Clough, 306AD2d 556, 557 [2003] [citation omitted], lv denied 100 NY2d 593 [2003]; see People v Criscitello, 123 AD3d1235, 1237 [2014]). Where, as here, defendant calls into question the validity of a postpleaarrest, or involvement in the underlying crime, "the court must conduct an inquiry at which thedefendant has an opportunity to show that the arrest is without foundation" (People vOutley, 80 NY2d at 713; see Peoplev Driscoll, 131 AD3d 766, 766-767 [2015], lv denied 27 NY3d 996[2016]).
At the Outley hearing, the People produced the testimony of the police officerinvolved in the alleged altercation with defendant, who testified that, on January 31, 2015, heresponded to the scene of a domestic assault whereupon he observed defendant, who matched thedescription of the suspect. The officer attempted to detain defendant, and, following a pursuit,defendant resisted such efforts by throwing the officer's radio, striking the right side of theofficer's face and attempting to "gouge" the officer's eyes. As a result of the incident, the officersustained a cut underneath his eye. In view of the foregoing, and inasmuch as defendant andcounsel were given an opportunity to refute the officer's testimony as well as the People'sallegations, we find that the inquiry was of sufficient depth so as to assure County Court thatthere was a legitimate basis for defendant's arrest and to find by a preponderance of the evidencethat defendant had violated the law (seePeople v Walker, 127 AD3d 1506, 1506 [2015]; People v Perkins, 125 AD3d 1045, 1047 [2015]; People vStraight, 106 AD3d at 1192). Accordingly, after reviewing the record before us, we find noreason to disturb County Court's determination that defendant violated a condition of his releaseand imposition of an enhanced sentence.
McCarthy, J.P., Devine, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.