| People v Durkin |
| 2023 NY Slip Op 01199 [214 AD3d 741] |
| March 8, 2023 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Brian Durkin, 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(Hyun Chin Kim, J.), rendered October 28, 2021, convicting him of attempted criminalsexual act in the first degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
On June 7, 2021, the defendant entered a plea of guilty to attempted criminal sexualact in the first degree, a class C felony, in exchange for a promised sentence. As acondition of the County Court's promised sentence, the defendant was required to answerthe questions posed by the probation department in a truthful manner consistent withwhat he told the court during the plea proceeding. Thereafter, based on statements madeby the defendant during his interview with the probation department, the court imposedan enhanced sentence.
The defendant's contention that the County Court should have held a hearing prior toimposing an enhanced sentence is unpreserved for appellate review, since the defendantneither requested such a hearing nor moved to withdraw his plea on this ground (see People v Goode-Ford, 205AD3d 1051 [2022]; Peoplev Shealy, 195 AD3d 1047, 1048 [2021]). In any event, "[a]n enhanced sentencemay be imposed on a defendant who, in violation of an express condition of a pleaagreement, has failed to truthfully answer questions during a probation departmentinterview" (People vGuzman-Hernandez, 135 AD3d 957, 957 [2016]; see People v Hicks, 98NY2d 185, 189 [2002]). Under the circumstances of this case, the court's inquiry wassufficient to determine that the defendant had violated a condition of his plea agreement(see People v Shealy, 195 AD3d at 1048; People v Foster, 153 AD3d 1429, 1429 [2017]).
Accordingly, the County Court providently exercised its discretion in imposing theenhanced sentence (see People v Shealy, 195 AD3d at 1049; People v Takie, 172 AD3d1249, 1250 [2019]). Barros, J.P., Chambers, Zayas and Voutsinas, JJ., concur.