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

1421
KA 11-02317
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DENNIS SCOTT, DEFENDANT-APPELLANT.


ADAM H. VAN BUSKIRK, AURORA, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered September 20, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal sale 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 a plea of guilty of criminal sale of a controlled substance in
the third degree (Penal Law § 220.39 [1]). Although defendant’s
contention that County Court erred in failing to hold an Outley
hearing to determine the legality of his postplea arrest survives his
valid waiver of the right to appeal (see People v Arrington, 94 AD3d
903, 903; People v Peck, 90 AD3d 1500, 1501; People v Butler, 49 AD3d
894, 895, lv denied 10 NY3d 932, reconsideration denied 11 NY3d 830),
that contention is nevertheless unpreserved for our review inasmuch as
he failed to request such a hearing and did not move to withdraw his
plea on that ground (see People v Anderson, 99 AD3d 1239, 1239; People
v Bragg, 96 AD3d 1071, 1071; Arrington, 94 AD3d at 903). We decline
to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]),
particularly in light of defendant’s admission that, less than three
weeks after pleading guilty, he purchased and possessed heroin in
violation of an express condition of the plea agreement.

     Defendant likewise failed to preserve for our review his
contention that the court erred in imposing an enhanced sentence
without affording him an opportunity to withdraw his plea because he
did not object to the enhanced sentence, nor did he move to withdraw
the plea or to vacate the judgment of conviction on that ground (see
People v Sprague, 82 AD3d 1649, 1649, lv denied 17 NY3d 801; People v
Magliocco, 78 AD3d 1648, 1649, lv denied 16 NY3d 798). In any event,
                                 -2-                          1421
                                                         KA 11-02317

that contention lacks merit. The record establishes that defendant
“was clearly informed of the consequences of his failure” to abide by
the conditions of his plea agreement (Sprague, 82 AD3d at 1649; see
People v Winters, 82 AD3d 1691, 1691, lv denied 17 NY3d 810). Thus,
upon defendant’s violation of a condition of the plea agreement, the
court was “no longer bound by the agreement and [was] free to impose a
greater sentence without offering . . . defendant an opportunity to
withdraw his . . . plea” (Sprague, 82 AD3d at 1649 [internal quotation
marks omitted]; see People v Faso, 82 AD3d 1584, 1584, lv denied 17
NY3d 816, reconsideration denied 17 NY3d 952; People v Vaillant, 77
AD3d 1389, 1390).

     Defendant further contends that the sentence is unduly harsh and
severe given his age, health, and drug addiction. That contention is
properly before us despite defendant’s valid waiver of the right to
appeal because the court “failed to advise defendant of the potential
periods of incarceration that could be imposed, including the
potential periods of incarceration for an enhanced sentence . . . ,
before he waived his right to appeal” (People v Trisvan, 8 AD3d 1067,
1067, lv denied 3 NY3d 682; see People v Huggins, 45 AD3d 1380,
1380-1381, lv denied 9 NY3d 1006; People v Mack, 38 AD3d 1292, 1293).
We nevertheless reject defendant’s contention. Defendant has a
lengthy criminal history, which includes convictions of petit larceny,
criminal sale of a controlled substance, and robbery. The statement
of defendant that he is HIV positive, without any additional
information as to the state of his health, is insufficient to warrant
a reduction of the sentence. Defendant is only 56 years old and,
contrary to his contention, the seven-year sentence does not equate to
a de facto death sentence (see People v Spitzley, 303 AD2d 837, 838,
lv denied 100 NY2d 599; People v Jones, 290 AD2d 726, 727, lv denied
97 NY2d 756). Moreover, the circumstances defendant cites on appeal,
i.e., his age, health, and drug addiction, were before the court at
the time of sentencing (see People v Tasber, 273 AD2d 542, 543, lv
denied 95 NY2d 858). Thus, defendant has not established
“extraordinary circumstances . . . that would warrant a reduction of
the sentence as a matter of discretion in the interest of justice”
(People v Taplin, 1 AD3d 1044, 1046, lv denied 1 NY3d 635 [internal
quotation marks omitted]; see generally People v McGarry, 219 AD2d
744, 744, lv denied 87 NY2d 848).

     Finally, we reject defendant’s unsupported contention that the
court punished him for his heroin addiction.




Entered:   December 28, 2012                    Frances E. Cafarell
                                                Clerk of the Court
