People v. Thompson

205 A.D.3d 1232

166 N.Y.S.3d 612 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Anthony J. THOMPSON, Appellant.

113024

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

Calendar Date: April 28, 2022

Decided and Entered: May 19, 2022

Hegge & Confusione, LLC, Mullica Hill, New Jersey (Michael Confusione of counsel), for appellant.

Kristy L. Sprague, District Attorney, Elizabethtown (Carrie E. Daley of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Reynolds Fitzgerald, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeal from a judgment of the County Court of Essex County (Meyer, J.), rendered June 22, 2021, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

After forcibly entering the victim's home and causing her physical injury, defendant was charged in a seven-count indictment with burglary in the first degree, criminal mischief in the fourth degree, assault in the second degree, assault in the third degree, criminal obstruction of breathing or blood circulation, strangulation in the second degree and aggravated harassment in the second degree. Defendant ultimately pleaded guilty to the reduced charge of burglary in the second degree in full satisfaction of the indictment and agreed to waive his right to appeal in exchange for a prison term of six years followed by five years of postrelease supervision, to which County Court conditionally committed. At sentencing, however, the court became aware of at least two other arrests involving the same victim that had occurred prior to defendant's guilty plea. In light of this, the court determined that it could not sentence defendant in accordance with the plea agreement, and, after defendant declined the opportunity to withdraw his plea, the court sentenced him to a prison term of eight years followed by five years of postrelease supervision. Defendant appeals.

We affirm. Initially, we agree with defendant that his waiver of the right to appeal is invalid because County Court did not ascertain, prior to imposing the enhanced sentence, that defendant remained willing to waive his right to appeal (see People v. Johnson, 14 N.Y.3d 483, 487, 903 N.Y.S.2d 299, 929 N.E.2d 361 [2010] ; People v. Sanchez, 194 A.D.3d 1199, 1201, 147 N.Y.S.3d 749 [2021] ; People v. Hockenbury, 190 A.D.3d 1155, 1156, 140 N.Y.S.3d 322 [2021], lv denied 37 N.Y.3d 957, 147 N.Y.S.3d 531, 170 N.E.3d 405 [2021] ).

However, we find no error in the imposition of the enhanced sentence. After concluding that the negotiated sentence was no longer appropriate, County Court offered defendant multiple opportunities to withdraw his plea, which he declined, and therefore the court was permitted to impose an enhanced sentence (see People v. Sutton, 184 A.D.3d 236, 241, 125 N.Y.S.3d 739 [2020], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 385, 152 N.E.3d 1186 [2020] ; People v. Adams, 104 A.D.3d 1020, 1020–1021, 960 N.Y.S.2d 663 [2013], lv denied 19 N.Y.3d 964 [2012]; People v. Mattucci, 92 A.D.3d 1029, 1029–1030, 937 N.Y.S.2d 727 [2012] ). Further, defendant's sentence was well below the maximum permissible sentence for this violent felony (see Penal Law §§ 70.06[6][b] ; 140.25[1][b]), and, given his continued course of conduct against the victim, we perceive no extraordinary circumstances or abuse of discretion that would warrant a modification of the sentence in the interest of justice (see People v. Grimes, 195 A.D.3d 1245, 1246, 145 N.Y.S.3d 865 [2021] ; People v. Hockenbury, 190 A.D.3d at 1156–1157, 140 N.Y.S.3d 322 ; People v. Mattucci, 92 A.D.3d at 1030, 937 N.Y.S.2d 727 ). Finally, defendant's claim...