People v. Moffett

Appellate Division of the Supreme Court of New York

People v. Moffett

90 A.D.3d 1560, 934 N.Y.2d 909

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 23, 2011

StatusPublished

This text of 90 A.D.3d 1560 (People v. Moffett) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Moffett, 90 A.D.3d 1560, 934 N.Y.2d 909 (N.Y. Ct. App. 2011).

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Opinion

Memorandum:

Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [1]). “Defendant failed to preserve for our review his contention that County Court erred in failing to advise him of his right to a hearing concerning his alleged violations of the plea agreement prior to imposing an enhanced sentence” (People v Gibson, 52 AD3d 1227, 1227 [2008]; see also People v Sprague, 82 AD3d 1649 [2011], lv denied 17 NY3d 801 [2011]; People v Perry, 252 AD2d 990 [1998], lv denied 92 NY2d 929 [1998]). In any event, that contention is without merit. Pursuant to the plea agreement, in order to receive the promised sentence, defendant was required to comply with a curfew, to appear as required by the probation officer preparing the presentence report and to remain arrest free. Defendant admitted that he had been rearrested and violated his curfew (see People v Valencia, 3 NY3d 714, 715-716 [2004]; People v Laskowski, 46 AD3d 1383 [2007]), and he did not contest the remaining accusations concerning violations of the sentencing conditions. Consequently, we conclude that defendant was not entitled to a hearing before the court enhanced his sentence (see generally People v Figgins, 87 NY2d 840 [1995]).

The sentence is not unduly harsh or severe. Present — Smith, J.E, Fahey, Garni, Sconiers and Gorski, JJ.

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Memorandum:

Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [1]). “Defendant failed to preserve for our review his contention that County Court erred in failing to advise him of his right to a hearing concerning his alleged violations of the plea agreement prior to imposing an enhanced sentence” (People v Gibson, 52 AD3d 1227, 1227 [2008]; see also People v Sprague, 82 AD3d 1649 [2011], lv denied 17 NY3d 801 [2011]; People v Perry, 252 AD2d 990 [1998], lv denied 92 NY2d 929 [1998]). In any event, that contention is without merit. Pursuant to the plea agreement, in order to receive the promised sentence, defendant was required to comply with a curfew, to appear as required by the probation officer preparing the presentence report and to remain arrest free. Defendant admitted that he had been rearrested and violated his curfew (see People v Valencia, 3 NY3d 714, 715-716 [2004]; People v Laskowski, 46 AD3d 1383 [2007]), and he did not contest the remaining accusations concerning violations of the sentencing conditions. Consequently, we conclude that defendant was not entitled to a hearing before the court enhanced his sentence (see generally People v Figgins, 87 NY2d 840 [1995]).

The sentence is not unduly harsh or severe. Present — Smith, J.E, Fahey, Garni, Sconiers and Gorski, JJ.

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90 A.D.3d 1560, 934 N.Y.2d 909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-moffett-nyappdiv-2011.

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