| People v Batista |
| 2020 NY Slip Op 00872 [180 AD3d 698] |
| February 5, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Angel Batista, Appellant. |
Paul Skip Laisure, New York, NY (Kathleen Whooley of counsel), forappellant.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Sharon Y. Brodt, and Joan J. Tarbutton of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Richard L. Buchter, J.), rendered December 18, 2012, convicting him of criminalpossession of a weapon in the second degree, upon his plea of guilty, and imposingsentence. The appeal brings up for review the denial, after a hearing, of those branches ofthe defendant's omnibus motion which were to suppress physical evidence andstatements he made to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant's purported waiver of the right to appeal was invalid (see People v Wilkinson, 176AD3d 879, 880 [2019]; People v Martin, 162 AD3d 793, 793 [2018]). Under thecircumstances, the record does not demonstrate that the defendant understood the natureof the right to appeal and the consequences of waiving it (see People v De La Rosa, 148AD3d 927 [2017]).
We agree with the Supreme Court's determination denying those branches of thedefendant's omnibus motion which were to suppress the weapons recovered from hisvehicle and his statements made to police during a traffic stop based upon a trafficinfraction (see Vehicle and Traffic Law § 1163; People v Watson, 163 AD3d855, 857 [2018]; People vDiaz, 146 AD3d 803, 804 [2017]; People v Davis, 103 AD3d 810, 811 [2013]; People v Glover, 84 AD3d977, 978 [2011]). There is no support for the defendant's contentions that the policeofficers' testimony was incredible, patently tailored to nullify constitutional objections, orotherwise unworthy of belief (see People v Sarkodie, 172 AD3d 909, 910 [2019]).
The defendant's contention that the Supreme Court erred in imposing an enhancedsentence is unpreserved for appellate review, as the defendant neither objected to theenhanced sentence on the ground that it was greater than the sentence originallypromised nor moved to vacate his plea (see CPL 470.05 [2]; People v Perkins, 169 AD3d936 [2019]; People vMartin, 151 AD3d 753 [2017]; People v Carrasquillo, 133 AD3d 774 [2015]). In anyevent, we agree with the court's determination imposing the enhanced sentence (see People v Neilson, 167AD3d 779, 781 [2018]; People v Smith, 160 AD3d 664, 665 [2018]; People v Harris, 142 AD3d557, 557 [2016]; People vGrant, 122 AD3d 767, 767 [2014]). The court specifically conditioned thesentence originally promised on the defendant refraining from engaging in furthercriminal activity, and warned that any future arrests could result in a harsher sentence.Nevertheless, the defendant subsequently was arrested and charged with new crimes towhich he pleaded guilty prior to sentencing in this case. Under the circumstances, thecourt was not bound by its original promise (see People v Neilson, 167 AD3d at781; People v Smith, 160AD3d 664, 665 [2018]; People v Harris, 142 AD3d at 557). Further, theenhanced sentence was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Leventhal, J.P., Roman, Cohen and Brathwaite Nelson, JJ., concur.