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

417
KA 08-00318
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DEVON CAPERS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Thomas R.
Morse, A.J.), rendered December 3, 2007. The judgment convicted
defendant, upon his plea of guilty, of robbery 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 robbery in the third degree (Penal Law §
160.05). We reject defendant’s contention that County Court erred in
imposing an enhanced sentence. First, defendant violated a condition
of the plea agreement by failing to appear in court on the scheduled
sentencing date, and thus the court properly imposed an enhanced
sentence based on that violation (see People v VanDeViver, 56 AD3d
1118, 1119, lv denied 11 NY3d 931, 12 NY3d 788). Second, defendant
was arrested after the plea and before sentencing for crimes allegedly
committed during that interim period, also in violation of a condition
of the plea agreement, and “the record establishes that the
information supporting the arrest was reliable and accurate” (People v
Hall, 38 AD3d 1289, 1290 [internal quotation marks omitted]). Indeed,
the evidence introduced at the inquiry pursuant to People v Outley (80
NY2d 702, 713) established that an indictment had been issued upon the
charges underlying the postplea arrest (see People v Smith, 248 AD2d
179, lv denied 91 NY2d 1013).

     The record belies the further contention of defendant that the
court informed him that he would not receive an enhanced sentence
unless he violated all of the conditions of the plea agreement (cf.
People v Williams, 195 AD2d 1040). Rather, the record establishes
that the court indicated that an enhanced sentence could be imposed
unless defendant did “everything” required by the conditions of the
plea agreement. We thus conclude that the court properly enhanced the
                                 -2-                           417
                                                         KA 08-00318

sentence based upon defendant’s failure to comply with the conditions
of the plea agreement (see People v Figgins, 87 NY2d 840).




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
