| People v Marcus |
| 2020 NY Slip Op 03337 [184 AD3d 1143] |
| June 12, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Shannon Marcus, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Kathy E. Manley of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Darienn P. Balin of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), renderedJanuary 4, 2018. The judgment convicted defendant, upon her plea of guilty, of criminalpossession of a controlled substance in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon a plea of guilty, ofcriminal possession of a controlled substance in the fourth degree (Penal Law§ 220.09 [1]). At the plea hearing, County Court warned defendant that if she wasarrested before sentencing, it would not be bound by the promised sentence and could impose anenhanced sentence. Defendant was subsequently arrested before sentencing. The court found thatthe arrest had a legitimate basis, and it imposed an enhanced sentence.
On appeal, defendant argues that the enhanced sentence was improper because the conductunderlying her post-plea arrest purportedly occurred before the plea. Preliminarily, we agree withdefendant that she did not validly waive her right to appeal (see People v Thomas, 34 NY3d 545, 562-563 [2019]). Moreover,contrary to the People's assertion, defendant's argument is preserved for appellate review. Indeed,defendant repeatedly advanced her current argument to the sentencing court in opposition to anenhanced sentence.
We reject defendant's argument on the merits, however. A sentencing court's power toimpose an enhanced sentence for violating a no-arrest condition turns on two questions: first,"whether a defendant subject to th[at] condition[ ] was arrested" after the plea (Peoplev Parker, 271 AD2d 63, 69 [4th Dept 2000], lv denied 95 NY2d 967 [2000][emphasis added]), and second, whether there was a "legitimate basis" for that arrest (Peoplev Outley, 80 NY2d 702, 713 [1993]). As defendant acknowledges, the answer to both ofthose questions in this case is yes. The enhanced sentence is thus legally permissible, irrespectiveof whether the conduct underlying the arrest occurred before or after the plea. Defendant cites noauthority for the proposition that a legitimate arrest cannot ever serve as the basis for anenhanced sentence if the conduct underlying the arrest occurred before the plea.
Defendant's reliance on People vCriscitello (123 AD3d 1235 [3d Dept 2014]) is unavailing. In that case, the defendantwas subject to enhanced sentencing only if, insofar as relevant here, he used drugs at anypoint between the plea and sentencing (id. at 1236-1237). Notably, the "defendant wasnot advised, when granted a furlough [after pleading guilty], that if he 'tested positive' for drugswhen he returned he would receive an enhanced sentence" (id. at 1237). Thus, althoughthe defendant tested positive for drugs on the sentencing date, the imposition of an enhancedsentence was nevertheless improper because the test could not pinpoint whether he had useddrugs before or after the plea (id. at 1237). Unlike Criscitello, however,defendant's exposure to enhanced sentencing in this case was not defined exclusively by herpost-plea conduct. Rather, defendant was subject to enhanced sentencing if she waslegitimately arrested after the plea, without regard to whether the conduct underlying thatarrest occurred before or after the plea.
Finally, the enhanced sentence is not unduly harsh or severe. Present—Centra, J.P.,Peradotto, NeMoyer, Curran and Winslow, JJ.