People v. Baxter

302 A.D.2d 950, 757 N.Y.S.2d 915, 2003 N.Y. App. Div. LEXIS 958

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2003
• Status: Published

Opinion

Appeal from a judgment of Monroe County Court (Connell, J.), entered November 5, 2001, convicting defendant upon his plea of guilty of criminal possession of a controlled substance in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [12]). Defendant knowingly, voluntarily and intelligently waived his right to appeal (see People v Kemp, 94 NY2d 831, 833; People v Brown, 281 AD2d 962, lv denied 96 NY2d 899), and that waiver specifically encompasses his contention that County Court erred in denying that part of his motion seeking suppression of his statement to a police officer (see People v Williams, 36 NY2d 829, 830, cert denied 423 US 873). Although the waiver of the right to appeal does not encompass the further contention of defendant that the court erred in imposing an enhanced sentence based upon his postplea conduct (see People v Parker, 271 AD2d 63, 68, lv denied 95 NY2d 967), defendant failed to preserve that contention for our review by objecting to the enhanced sentence or by moving to withdraw his plea or to vacate the judgment of conviction (see People v Perkins, 291 AD2d 925, 926, lv denied 98 NY2d 654; People v Michael S., 273 AD2d 804, 804-805; People v Perry, 252 AD2d 990, lv denied 92 NY2d 929). In any event, the court did not abuse its discretion in imposing an enhanced sentence (see People v Perkins, 291 AD2d at 926). The record establishes that defendant violated two conditions communicated to him at the time of his plea, i.e., that he appear at sentencing and that he not be arrested for a crime pending sentencing (see People v Yu, 204 AD2d 129, 129-130, lv denied 84 NY2d 835). Present — Pigott, Jr., P.J., Green, Scudder, Gorski and Lawton, JJ.