| People v Hockenbury |
| 2021 NY Slip Op 00335 [190 AD3d 1155] |
| January 21, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v James Hockenbury, Appellant. |
Stephen W. Herrick, Public Defender, Albany (Steven M. Sharp of counsel), forappellant.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), forrespondent.
Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered July 10,2017, convicting defendant upon his plea of guilty of the crime of criminal sexual act in the firstdegree.
Defendant was indicted and charged with one count of criminal sexual act in the first degree.The charges stemmed from an incident that occurred in 2016 when defendant, who had a longhistory of working with children, engaged in oral sexual conduct—on the grounds of anelementary school—with the less than four-year-old child whom he was baby-sitting.Following a suppression hearing, defendant agreed to plead guilty to the charged crime with theunderstanding that he would be sentenced to a prison term of 10 years followed by 20 years ofpostrelease supervision—subject to County Court's review of the presentence investigationreport. The plea agreement, which required defendant to waive his right to appeal, alsoencompassed other potential charges that could result from two ongoing investigations involvingallegations of, among other things, a second young victim. In conjunction therewith, defendantfurther agreed to afford the mother of the alleged second victim an opportunity to speak atsentencing. Defendant thereafter pleaded guilty in accord with the plea agreement, and the matterwas adjourned for sentencing.
After reviewing the presentence investigation report and hearing from the victim's mother, aswell as the mother of the alleged second victim, County Court informed defendant that it couldnot honor its prior sentencing commitment and afforded defendant the option of eitherwithdrawing his plea or accepting a sentence of 15 years in prison followed by 20 years ofpostrelease supervision. Following discussions with counsel, defendant elected to proceed withthe enhanced sentence, and County Court sentenced defendant accordingly. This appealensued.
As County Court did not—prior to imposing the enhanced sentence—ascertainwhether defendant remained willing to waive his right to appeal, the waiver of appeal is invalid(see People v Johnson, 14 NY3d483, 487 [2010]; People vMorehouse 183 AD3d 1180, 1181 [2020], lv denied 35 NY3d 1068 [2020]; People v Morgan-Smith, 182 AD3d923, 925 [2020], lv denied 35 NY3d 1047 [2020]). As such, defendant's challenge tothe severity of his sentence is not precluded (see People v Morgan-Smith, 182 AD3d at925). That said, given the aberrant nature of defendant's crime and the circumstances surroundingits commission, we find no extraordinary circumstances or abuse of discretion warranting areduction of the sentence imposed in the interest of justice—notwithstanding defendant'slack of a prior criminal history (seePeople v Kruppenbacher, 163 AD3d 1266, 1267 [2018], lv denied 32 NY3d1065 [2018]). Notably, the sentence imposed was less than the statutory maximum (seePenal Law § 70.02 [1] [a]; [3] [a]), and the favorable plea agreement resolved otherpotential charges.
To the extent [*2]that defendant contends that he was deniedthe effective assistance of counsel at the time of sentencing due to counsel's asserted failure tooppose the enhanced sentence, we note that defendant was offered an opportunity to withdrawhis plea but declined to do so following a discussion with his counsel. Defendant also agreed toallow the mother of the alleged second victim to speak at sentencing. Under these circumstances,and given defendant's potential sentencing exposure (see Penal Law § 70.02[1] [a]; [3] [a]), we do not find that defendant was denied the effective assistance of counsel (compare People v Barnes, 177 AD3d1168, 1169 [2019]). Defendant's remaining arguments, to the extent not specificallyaddressed, have been examined and found to be lacking in merit.
Garry, P.J., Clark, Mulvey, Reynolds Fitzgerald and Colangelo, JJ., concur. Ordered that thejudgment is affirmed.