| People v Shealy |
| 2021 NY Slip Op 04154 [195 AD3d 1047] |
| June 30, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Rakhim Shealy, Also Known as "Flee,"Appellant. |
Loren I. Glassman, White Plains, NY, for appellant.
Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio and SheaScanlon Lomma of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (DavidS. Zuckerman, J.), rendered March 6, 2019, convicting him of conspiracy in the second degree,upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
On January 30, 2019, the defendant entered a plea of guilty to conspiracy in the seconddegree before the County Court in exchange for a promised sentence. The defendantacknowledged that one of the conditions of the plea agreement was that he had "to answer all ofthe probation officer's questions truthfully and again admit [his] guilt to this very same crime that[he was] pleading guilty to." The defendant also acknowledged that violating this conditionwould expose him to an enhanced sentence of a term of imprisonment.
At the time of the plea proceeding, the defendant admitted that he, "along with hiscodefendants . . . were members of a Yonkers street gang known by the name ofBlood Stone Army." He also admitted that from March 1, 2006, through April 1, 2018, he and hiscodefendants agreed with each other, and with others, to engage and cause conduct constitutingthe crime of murder in the second degree to be performed. The County Court accepted thedefendant's plea.
On March 6, 2019, the defendant appeared before the same judge for sentencing. The CountyCourt noted that the presentence investigation report (hereinafter the PSI) prepared by theWestchester County Department of Probation indicated that the defendant denied anyinvolvement in the offense to which he pleaded guilty, that he did not know how his namebecame involved, and "denied any gang membership or affiliation with the BSA or BloodsGang." In response, the defendant did not contend that he had not made the statements attributedto him in the PSI. Indeed, defense counsel conceded that the defendant's statements to theprobation officer directly contradicted the statements he made when he pleaded guilty, butrequested that the court still impose the negotiated sentence. The court thereafter imposed anenhanced indeterminate term of imprisonment. The defendant appeals.
The defendant's contention that the County Court should have held an evidentiary [*2]hearing prior to imposing the enhanced sentence is unpreserved forappellate review, since the defendant neither requested such a hearing nor moved to withdraw hisplea on this ground (see People vAliano, 116 AD3d 874, 875 [2014]). In any event, "[a]n enhanced sentence may beimposed on a defendant who, in violation of an express condition of a plea agreement, has failedto truthfully answer questions during a probation department interview" (People v Guzman-Hernandez, 135AD3d 957, 957 [2016]; see People v Hicks, 98 NY2d 185, 189 [2002]). Under thecircumstances of this case, the court's inquiry was sufficient to determine that the defendant hadviolated a condition of his plea agreement (see People v Foster, 153 AD3d 1429, 1429 [2017]).
Accordingly, the County Court providently exercised its discretion in imposing the enhancedsentence (see People v Takie, 172AD3d 1249, 1250 [2019]). Chambers, J.P., Duffy, Iannacci and Wooten, JJ., concur.