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

789
KA 11-02153
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL HASSETT, DEFENDANT-APPELLANT.


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

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered March 14, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal contempt in the first
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 contempt in the first degree
(Penal Law § 215.51 [b] [v]). 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, 1589-1590, lv denied 21 NY3d 1075; see People v Amir
W., 107 AD3d 1639, 1640; People v Box, 96 AD3d 1570, 1571, lv denied
19 NY3d 1024), and because “there is no basis upon which to conclude
that the court ensured ‘that the defendant understood that the right
to appeal is separate and distinct from those rights automatically
forfeited upon a plea of guilty’ ” (id., quoting People v Lopez, 6
NY3d 248, 256). In any event, we further agree with defendant that
his contention regarding the court’s imposition of an enhanced
sentence based on his alleged violation of a condition of the plea
agreement would survive even a valid waiver of the right to appeal,
inasmuch as “the court failed to advise defendant of . . . the conduct
that could result in the imposition of an enhanced sentence before
defendant waived his right to appeal” (People v Sundown, 305 AD2d
1075, 1075-1076).

     Defendant failed to preserve for our review his contention that
the condition of the plea agreement concerning the imposition of an
                                 -2-                           789
                                                         KA 11-02153

enhanced sentence is invalid because it was imposed after he entered
his guilty plea but before the conclusion of the plea proceeding (see
CPL 470.05 [2]). He likewise failed to preserve for our review his
further contention that the court erred in imposing an enhanced
sentence without conducting a sufficient inquiry into his alleged
violation of the conditions of the plea agreement and without holding
an evidentiary hearing, inasmuch as he failed to object to the
sufficiency of the court’s inquiry or to request a hearing, and he did
not move to withdraw his plea on that ground (see People v Ali O., 115
AD3d 1353, 1353-1354, lv denied ___ NY3d ___ [May 28, 2014]). We
decline to exercise our power to review those contentions as a matter
of discretion in the interest of justice (see CPL 470.15 [3] [c]).
Finally, we reject defendant’s contention that the enhanced sentence
is unduly harsh and severe.




Entered:   July 11, 2014                       Frances E. Cafarell
                                               Clerk of the Court
