People v Juwan L.D.

2018 NY Slip Op 08322 [167 AD3d 645]

December 5, 2018

Appellate Division, Second Department

As corrected through Wednesday, January 30, 2018

[*1]

The People of the State of New York,Respondent, v Juwan L.D., Appellant.

Mary Zugibe Raleigh, Warwick, NY, for appellant.

David M. Hoovler, District Attorney, Goshen, NY (William C. Ghee and Andrew Kass ofcounsel), for respondent.

Appeal by the defendant from an amended judgment of the County Court, Orange County(Nicholas DeRosa, J.), rendered October 7, 2016, revoking a sentence of probation previouslyimposed by the same court, upon a finding that he violated conditions thereof, upon hisadmission, and imposing a sentence of imprisonment upon his previous adjudication as ayouthful offender for robbery in the second degree.

Ordered that the amended judgment is affirmed.

On October 3, 2014, the defendant pleaded guilty to robbery in the second degree, a class Cviolent felony (see Penal Law § 160.10 [1]). On November 13, 2014, theCounty Court adjudicated the defendant a youthful offender and sentenced him to a period ofprobation of five years. A violation of probation petition was filed against the defendant and, onNovember 4, 2015, the County Court adjourned the matter to afford the defendant an additionalopportunity to comply with the terms and conditions of his probation. On August 10, 2016, thedefendant admitted that he had violated certain additional conditions of his probation andconditional probation was continued. Thereafter, an addendum to the violation of probationpetition was filed against the defendant and, on October 7, 2016, upon a finding that thedefendant had violated additional conditions of his probation, the County Court revoked thesentence of probation and resentenced the defendant to an indeterminate term of imprisonment of11/3 to 4 years.

Under the circumstances of this case, the defendant's purported waiver of his right to appeal,given at the time of his plea of guilty, does not preclude review of his claim that the amendedsentence imposed upon his violation of conditions of his probation was excessive. The defendantwas not informed of the maximum sentence that could be imposed if he failed to conform to theconditions of probation, and thus, did not knowingly waive his right to appeal from the amendedjudgment (see People v Yodice, 153AD3d 1373 [2017]; People v Harris, 289 AD2d 1068 [2001]; cf. People v Maracle, 19 NY3d925, 928 [2012]; People v Lococo, 92 NY2d 825 [1998]; People v Hazel, 145 AD3d 797[2016]; People v Perez, 140 AD3d799 [2016]; People v Miles, 268 AD2d 489, 489-490 [2000]).

Nevertheless, the amended sentence imposed was not excessive (see People v Suitte,90 AD2d 80 [1982]). Mastro, J.P., Miller, Duffy and LaSalle, JJ., concur.