People v. Pisciotta

Appellate Division of the Supreme Court of New York

People v. Pisciotta

105 A.D.3d 456, 961 N.Y.S.2d 779

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

DecidedApril 4, 2013

StatusPublished

This text of 105 A.D.3d 456 (People v. Pisciotta) 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. Pisciotta, 105 A.D.3d 456, 961 N.Y.S.2d 779 (N.Y. Ct. App. 2013).

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Opinion

—Judgment, Supreme Court, New York County (Edward J. McLaughlin, J., at plea; Marcy L. Kahn, J., at sentencing), rendered August 5, 2010, convicting defendant of assault in the second and third degrees, and sentencing her, as a second felony offender, to an aggregate term of four years, unanimously affirmed.

Defendant’s claim that the court improperly enhanced her bargained-for sentence without sufficient inquiry is unpreserved since defendant neither requested a hearing nor moved to withdraw her plea (see e.g. People v Malaj, 69 AD3d 487 [1st Dept 2010], lv denied 15 NY3d 776 [2010]), and we decline to review it in the interest of justice. As an alternate holding, we find that the court conducted a sufficient inquiry and properly imposed an enhanced sentence based on reliable information that defendant violated the terms of her plea agreement (see People v Jenkins, 11 NY3d 282 [2008]). There were no disputed factual issues that required a hearing as a matter of due process (see People v Valencia, 3 NY3d 714 [2004]; compare Torres v Berbary, 340 F3d 63 [2d Cir 2003]). The record also establishes that defendant was sufficiently warned of the meaning and consequences of absconding from her drug program.

[457]*457We perceive no basis for reducing the sentence.

Concur— Tom, J.E, Andrias, Saxe, Abdus-Salaam and Gische, JJ.

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—Judgment, Supreme Court, New York County (Edward J. McLaughlin, J., at plea; Marcy L. Kahn, J., at sentencing), rendered August 5, 2010, convicting defendant of assault in the second and third degrees, and sentencing her, as a second felony offender, to an aggregate term of four years, unanimously affirmed.

Defendant’s claim that the court improperly enhanced her bargained-for sentence without sufficient inquiry is unpreserved since defendant neither requested a hearing nor moved to withdraw her plea (see e.g. People v Malaj, 69 AD3d 487 [1st Dept 2010], lv denied 15 NY3d 776 [2010]), and we decline to review it in the interest of justice. As an alternate holding, we find that the court conducted a sufficient inquiry and properly imposed an enhanced sentence based on reliable information that defendant violated the terms of her plea agreement (see People v Jenkins, 11 NY3d 282 [2008]). There were no disputed factual issues that required a hearing as a matter of due process (see People v Valencia, 3 NY3d 714 [2004]; compare Torres v Berbary, 340 F3d 63 [2d Cir 2003]). The record also establishes that defendant was sufficiently warned of the meaning and consequences of absconding from her drug program.

[457]*457We perceive no basis for reducing the sentence.

Concur— Tom, J.E, Andrias, Saxe, Abdus-Salaam and Gische, JJ.

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Bluebook (online)

105 A.D.3d 456, 961 N.Y.S.2d 779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-pisciotta-nyappdiv-2013.

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