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

463
KA 13-01457
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SCOTT D. STANLEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered August 1, 2013. The judgment convicted
defendant, upon his plea of guilty, of attempted rape in the first
degree and rape in the second degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Genesee County Court for
further proceedings in accordance with the following memorandum: On
appeal from a judgment convicting him, upon his plea of guilty, of
attempted rape in the first degree (Penal Law §§ 110.00, 130.35 [4])
and rape in the second degree (§ 130.30 [1]), defendant contends that
County Court erred in imposing an enhanced sentence based on his
alleged violation of the conditions of the court’s sentence promise.
We conclude that, before imposing an enhanced sentence, the court
should have conducted a more in-depth inquiry to determine whether
defendant violated the conditions of the sentence promise by failing
to answer truthfully questions asked of him by the probation officer
who prepared his presentence report (PSR).

     By way of background, the indictment alleged in pertinent part
that defendant, age 34, had sexual intercourse with two girls who were
under the age of 15. After several court appearances, defendant
reached an agreement with the People whereby he pleaded guilty to rape
in the second degree in satisfaction of the counts of the indictment
relating to the older victim, and attempted rape in the first degree
in satisfaction of the counts relating to the younger victim. During
the plea colloquy, defendant stated under oath that he had sexual
intercourse with both victims.

     In return for defendant’s plea, the court, consistent with the
plea agreement, promised to sentence defendant to a determinate term
of imprisonment of ten years plus a period of postrelease supervision
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                                                         KA 13-01457

for rape in the second degree, and to a lesser concurrent term of
imprisonment for attempted rape in the first degree. Prior to
accepting defendant’s plea, however, the court stated that its
sentence promise was conditioned upon defendant, among other things,
cooperating with the probation department “in the preparation” of a
PSR and truthfully answering any questions asked of him “in that
process.” “[I]f you fail to keep any of those promises to me,” the
court advised defendant, “your guilty plea will stand, but the promise
of a ten-year cap and the promise of concurrent sentences would be
gone.”

     During his interview with the probation officer assigned to
prepare the PSR, defendant admitted that he had sexual intercourse
with the older victim. With respect to the younger victim, defendant
stated that he attempted to have sexual intercourse with her as well
but that, after touching her breasts, he stopped because he could tell
from her body language that she did not wish to go further. At the
request of the probation officer, defendant went to a sex offender
treatment facility to obtain a sex offender evaluation and risk
assessment. During his interview with a social worker at the
treatment facility, defendant again admitted that he had sexual
intercourse with the older victim but initially denied having sexual
intercourse with the younger victim. Upon further questioning,
however, defendant eventually admitted that he had sexual intercourse
with both victims, as he stated during the plea colloquy.

     When defendant appeared for sentencing, the prosecutor asked the
court to impose the promised sentence. Following an off-the-record
conference at the bench, however, the prosecutor asked the court to
impose an enhanced sentence of imprisonment of 15 years, contending
that defendant violated the conditions of the sentence promise by
lying to the probation officer when he said that he merely touched the
younger victim’s breasts, and lying to the social worker by initially
denying that he had sexual intercourse with her. Following a brief
adjournment, the court concluded that defendant violated the
conditions of the sentence promise by lying to the probation officer
and deceiving the officer “into thinking that there was only one
victim of serious sexual intrusion and not two.” The court sentenced
defendant to consecutive determinate terms of imprisonment amounting
to 22 years, plus a period of postrelease supervision.

     As a preliminary matter, we note that, although defendant
effected a valid waiver of the right to appeal, a “general waiver of
the right to appeal does not foreclose review of the defendant’s
contention that his [postplea] conduct did not warrant an enhanced
sentence” (People v Patterson, 106 AD3d 757, 757, lv denied 21 NY3d
1018; see People v Faulkner, 54 AD3d 1134, 1135, lv denied 11 NY3d
854). Moreover, with respect to preservation, because the court was
“aware of, and expressly decided, the [issue] raised on appeal”
(People v Collins, 106 AD3d 1544, 1546, lv denied 21 NY3d 1072
[internal quotation marks omitted]; see People v Hawkins, 11 NY3d 484,
493), we conclude that defendant’s challenge to the court’s imposition
of the enhanced sentence is properly before us notwithstanding defense
counsel’s failure to object to the enhanced sentence.
                                 -3-                           463
                                                         KA 13-01457

     With respect to the merits, “[i]t is well established that the
violation of an explicit and objective . . . condition[ of a sentence
promise] that was accepted by the defendant can result in the
imposition of an enhanced sentence” (People v Becker, 80 AD3d 795,
796; see People v Hicks, 98 NY2d 185, 189). In addition, “a failure
to abide by a condition of a [sentence promise] to truthfully answer
questions asked by the probation department is an appropriate basis
for the enhancement of the defendant’s sentence” (Patterson, 106 AD3d
at 757; see Hicks, 98 NY2d at 189; People v Mazyck, 117 AD3d 1084,
1085, lv denied 23 NY3d 1064).

     Here, the court did not find that defendant lied during his
interview with the social worker who prepared the sex offender
evaluation and risk assessment instrument. Thus, even assuming,
arguendo, that defendant’s statements to the social worker constitute
a violation of the conditions of the court’s sentence promise, as the
People contend, the court did not decide that issue adversely to
defendant, and we cannot therefore affirm on that basis (see People v
Concepcion, 17 NY3d 192, 197-198; People v LaFontaine, 92 NY2d 470,
474, rearg denied 93 NY2d 849).

     As noted, the court imposed an enhanced sentence based solely on
its determination that defendant “lied to the probation officer”
during the PSR interview, presumably by telling the officer about an
incident in which he touched the younger victim’s breasts but did not
have sexual intercourse with her. With respect to that issue, we
conclude that it cannot be determined from a review of record,
including the PSR, whether defendant failed to answer truthfully
questions asked of him by the probation officer, as the court found.
Defendant’s admission of one incident in which he touched the younger
victim’s breasts but stopped short of having sexual intercourse with
her does not preclude the fact that there may have been a separate
incident in which he had sexual intercourse with her. The PSR does
not indicate whether the probation officer specifically asked
defendant whether he had sexual intercourse with the younger victim,
and it is therefore unclear whether defendant violated the condition
of the sentence promise that he answer such questions truthfully. In
the absence of evidence of an untruthful answer to a question asked by
the probation officer, we conclude that the court erred in imposing an
enhanced sentence. We therefore hold the case, reserve decision and
remit the matter to County Court for a hearing to determine whether
there is such evidence.




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
