        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1064
KA 12-01003
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY COKER, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered January 5, 2012. The judgment convicted
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 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 [1]). We agree with
defendant that “the waiver of the right to appeal is invalid because
the minimal inquiry made by County Court was insufficient to establish
that the court engage[d] the defendant in an adequate colloquy to
ensure that the waiver of the right to appeal was a knowing and
voluntary choice” (People v Jones, 107 AD3d 1589, 1589, lv denied 21
NY3d 1075 [internal quotation marks omitted]; see People v Box, 96
AD3d 1570, 1571, lv denied 19 NY3d 1024). Further, the People
correctly concede that the court failed to ensure “that the defendant
understood that the right to appeal is separate and distinct from
those rights automatically forfeited upon a plea of guilty” (People v
Lopez, 6 NY3d 248, 256; see Jones, 107 AD3d at 1590).

     Defendant failed to move to withdraw the plea or to vacate the
judgment of conviction on the ground that the court’s Outley warning
was not part of the plea agreement and thus failed to preserve for our
review his contention that the court erred in imposing an enhanced
sentence (see People v Scott, 101 AD3d 1773, 1773-1774, lv denied 21
NY3d 1019). In any event, that contention is without merit inasmuch
as “the record establishes that defendant ‘was clearly informed of the
consequences of his failure’ to abide by the conditions of his plea
agreement” (id. at 1774), and defendant stated that he understood that
                                 -2-                             1064
                                                            KA 12-01003

he was subject to an enhanced sentence in the event that he was
“involved in any new criminal conduct.” Even assuming, arguendo, that
defendant’s contention that he was denied effective assistance of
counsel based upon counsel’s failure to object to that condition
survives his plea of guilty, we reject that contention. The record
establishes that defendant “receive[d] an advantageous plea and
nothing in the record casts doubt on the apparent effectiveness of
counsel” (People v Ford, 86 NY2d 397, 404; see People v Laurendi, 126
AD3d 1401, 1402; People v Parson, 122 AD3d 1441, 1442-1443).

     Defendant likewise failed to preserve for our review his
contention that the court erred in failing to hold a hearing on the
issue whether he violated the “new criminal conduct” condition of his
plea agreement because he failed to request such a hearing (see People
v Ali O., 115 AD3d 1353, 1353-1354, lv denied 23 NY3d 960). In any
event, we conclude that “[t]he court was not required to conduct an
evidentiary hearing to determine the veracity of defendant’s excuses,”
and that the court conducted a sufficient inquiry before determining
that defendant had engaged in criminal conduct before it imposed the
enhanced sentence (People v Albergotti, 17 NY3d 748, 750).

     Finally, the sentence is not unduly harsh or severe.




Entered:   November 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
