| People v Carson |
| 2023 NY Slip Op 00435 [213 AD3d 690] |
| February 1, 2023 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Carson, Appellant. |
Alex Smith, Middletown, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County(William L. DeProspo, J.), rendered July 29, 2021, convicting him of attempted criminalsale of a controlled substance in the third degree (two counts), upon his plea of guilty,and sentencing him, as a second felony drug offender previously convicted of a violentfelony, to consecutive determinate terms of imprisonment of 9 years, to be followed by aperiod of postrelease supervision of 3 years, on each count.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the sentence imposed from consecutive determinate terms ofimprisonment of 9 years, to be followed by a period of postrelease supervision of 3 years,on each count, to concurrent determinate terms of imprisonment of 7 years, to befollowed by a period of postrelease supervision of 3 years, on each count; as so modified,the judgment is affirmed.
The defendant entered a plea of guilty to two counts of attempted criminal sale of acontrolled substance in the third degree, and the County Court promised to impose asentence consisting of concurrent terms of imprisonment that would be capped at 5 years,to be followed by a period of postrelease supervision of 2 years, on each count. Thedefendant was advised that the court's promise was based upon specified conditions. Thecourt found that the defendant had violated certain conditions. Based on that finding, thecourt imposed an enhanced sentence, consisting of consecutive determinate terms ofimprisonment of 9 years, to be followed by a period of postrelease supervision of 3 years,on each count.
On appeal, the defendant contends that the County Court did not have a sufficientbasis on which to impose an enhanced sentence. As the People correctly concede, thisclaim is not precluded by his waiver of the right to appeal (see People v Smith, 160 AD3d664, 665 [2018]; People vGregory, 140 AD3d 1088, 1089 [2016]). The defendant's contention, however,is partially unpreserved for appellate review and, in any event, without merit. The court'sfindings that the defendant violated the conditions imposed at the plea proceeding were"supported by sufficient reliable and accurate information" (People v Sterngast, 211 AD3d1043, 1044 [2d Dept 2022]; see People v Valencia, 3 NY3d 714, 715 [2004]; Peoplev Outley, 80 NY2d 702, 712 [1993]), and it was therefore appropriate for the court toimpose an enhanced sentence.
[*2] Contrary tothe People's argument, the defendant's further contention that the enhanced sentenceimposed was excessive is not foreclosed by the defendant's waiver of the right to appeal,since the defendant was not advised during the plea proceeding of the maximumsentence that could be imposed if he failed to comply with the conditions of the CountyCourt's sentencing promise (seePeople v Wynne, 206 AD3d 1013, 1014 [2022]; People v McNeil, 164 AD3d608 [2018]; People v Shea, 254 AD2d 512, 513 [1998]; see also People vLococo, 92 NY2d 825, 827 [1998]). Although the court had a right to enhance thedefendant's sentence, "we have broad, plenary power to modify an enhanced sentencethat is harsh or excessive under the circumstances" (People v Diaz, 146 AD3d 803, 805 [2017]; see People v Burbridge, 194AD3d 831, 833 [2021]). The enhanced sentence imposed was excessive to the extentindicated herein.
The defendant's remaining contention is unpreserved for appellate review, and wedecline to reach it in the exercise of our interest of justice jurisdiction. Barros, J.P.,Chambers, Zayas and Voutsinas, JJ., concur.