Opinion
2013-05-1
The PEOPLE, etc., respondent, v. Larry PATTERSON, appellant.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant, and appellant pro se. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant, and appellant pro se. Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Collini, J.), rendered February 25, 2010, convicting him of assault in the second degree, criminal possession of stolen property in the fourth degree, and criminal possession of stolen property in the fifth degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
A general waiver of the right to appeal does not foreclose review of the defendant's contention that his post-plea conduct did not warrant an enhanced sentence ( see People v. Butler, 49 A.D.3d 894, 895, 854 N.Y.S.2d 506;People v. Kitchens, 46 A.D.3d 577, 846 N.Y.S.2d 625;People v. Garner, 18 A.D.3d 669, 669–670, 795 N.Y.S.2d 336;People v. Stowe, 15 A.D.3d 597, 598, 790 N.Y.S.2d 521). However, a failure to abide by a condition of a plea agreement to truthfully answer questions asked by the probation department is an appropriate basis for the enhancement of the defendant's sentence ( see People v. Hicks, 98 N.Y.2d 185, 746 N.Y.S.2d 441, 774 N.E.2d 205). The condition of the defendant's plea that he cooperate with the probation department was explicit and objective, and was acknowledged, understood, and accepted by the defendant as part of the plea agreement ( see People v. Butler, 49 A.D.3d at 895, 854 N.Y.S.2d 506;People v. Blackwell, 62 A.D.3d 896, 897, 879 N.Y.S.2d 187). The defendant's violation of that condition, by refusing to be interviewed by the probation officer, allowed the Supreme Court to impose the enhanced sentence.
The defendant's valid waiver of his right to appeal forecloses appellate review of his challenge, raised in his pro se supplemental brief, to the hearing court's suppression determination ( see People v. Kidd, 100 A.D.3d 779, 953 N.Y.S.2d 863,lv. denied20 N.Y.3d 1062, 962 N.Y.S.2d 613, 985 N.E.2d 923; People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754;People v. Holland, 44 A.D.3d 874, 843 N.Y.S.2d 457;People v. Brathwaite, 263 A.D.2d 89, 91, 703 N.Y.S.2d 191).
Since the defendant's claim of ineffective assistance of counsel, raised in his pro se supplemental brief, does not directly involve the negotiation of his plea of guilty, the defendant forfeited that claim by pleading guilty ( see People v. Turner, 40 A.D.3d 1018, 1019, 834 N.Y.S.2d 666;People v. Petgen, 55 N.Y.2d 529, 535 n. 3, 450 N.Y.S.2d 299, 435 N.E.2d 669;People v. Silent, 37 A.D.3d 625, 831 N.Y.S.2d 194;People v. Cumba, 32 A.D.3d 444, 820 N.Y.S.2d 304).
The defendant's claims in his pro se supplemental brief that the felony complaint and the indictment were jurisdictionally insufficient survive his plea of guilty ( see People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773) and his waiver of his right to appeal ( see People v. Crummell, 84 A.D.3d 1393, 924 N.Y.S.2d 290; People v. Libby, 246 A.D.2d 669, 668 N.Y.S.2d 397). However, these claims are without merit ( seeCPL 100.15, 100.40; People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656;People v. Gerber, 182 A.D.2d 252, 266–267, 589 N.Y.S.2d 171).