

People v Power (2019 NY Slip Op 00038)





People v Power


2019 NY Slip Op 00038


Decided on January 3, 2019


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on January 3, 2019

Friedman, J.P., Richter, Gesmer, Kern, Moulton, JJ.


7997 1823/16

[*1]The People of the State of New York, Respondent,
vJames Power, Defendant-Appellant.


Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.

Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered December 2, 2016, convicting defendant, upon his plea of guilty, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of two to four years, unanimously affirmed.
The record does not establish that defendant made an enforceable waiver of the right to appeal. However, defendant failed to preserve his claim that the court conducted an insufficient inquiry as to whether he violated the terms of his plea agreement (see e.g. People v Stephens, 108 AD3d 414 [1st Dept 2013], lv denied 21 NY3d 1077 [2013]), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. Due process was satisfied, because the sentencing court conducted an adequate inquiry and provided defendant with a reasonable opportunity to present his explanation before finding that he had willfully violated the plea agreement and forfeited his opportunity for a disposition involving dismissal of the charges (see People v Fiammegta, 14 NY3d 90, 98 [2010]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 3, 2019
CLERK


