People v. Bushey

186 A.D.3d 1835

129 N.Y.S.3d 346 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Anthony BUSHEY, Appellant.

110604

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 4, 2020

Decided and Entered: September 24, 2020

G. Scott Walling, Slingerlands, for appellant.

Letitia James, Attorney General, New York City (Hannah Stith Long of counsel), for respondent.

Before: Garry, P.J., Lynch, Mulvey, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

In connection with an 86–count indictment against multiple codefendants related to drug trafficking, defendant was charged with conspiracy in the second degree and several drug-related crimes. In satisfaction of all charges, defendant pleaded guilty to criminal possession of a controlled substance in the fourth degree under count 60 of the indictment and executed a waiver of appeal, in exchange for a prison sentence of four years to be followed by two years of post-release supervision. At sentencing, County Court determined that defendant had violated his plea agreement and imposed an enhanced prison sentence of five years with two years of post-release supervision. Defendant appeals.

We affirm. Defendant argues that County Court abused its discretion in imposing an enhanced sentence without conducting a sufficient inquiry into his post-plea conduct. At sentencing, the court indicated that it had received documents from the jail reflecting that defendant had violated jail rules by damaging a facility tablet, and the court found that it was no longer bound to impose the promised sentence. When provided an opportunity to address the court, defendant did not deny the post-plea conduct, object to the court's violation finding, request a hearing or further inquiry to contest the jail charges or move to withdraw his guilty plea. Thus, defendant's claim is unpreserved (see People v. Adams, 165 A.D.3d 1343, 1345, 85 N.Y.S.3d 618 [2018] ; People v. Smith, 162 A.D.3d 1408, 1409, 80 N.Y.S.3d 514 [2018] ; cf. People v. Outley, 80 N.Y.2d 702, 707, 713, 594 N.Y.S.2d 683, 610 N.E.2d 356 [1993] ; People v. Blanford, 179 A.D.3d 1388, 1392–1393, 118 N.Y.S.3d 294 [2020], lv denied 35 N.Y.3d 968, 125 N.Y.S.3d 13, 148 N.E.3d 477 [2020] ).

Moreover, defendant waived any challenge to the enhanced sentence in exchange for the promise that it would satisfy the charges related to the jail misconduct (see People v. Derrig, 175 A.D.3d 1675, 1675–1676, 106 N.Y.S.3d 637 [2019], lv denied 34 N.Y.3d 1127, 118 N.Y.S.3d 540, 141 N.E.3d 496 [2020] ; People v. Slamp, 145 A.D.3d 1320, 1321, 44 N.Y.S.3d 245 [...