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

334
KA 12-01706
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALI O., DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF
COUNSEL), FOR RESPONDENT.


     Appeal from an adjudication of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered September 10, 2012. Defendant was
adjudicated a youthful offender upon his plea of guilty to attempted
robbery in the third degree.

     It is hereby ORDERED that the adjudication so appealed from is
unanimously affirmed.

     Memorandum: On appeal from an adjudication based upon his plea
of guilty of attempted robbery in the third degree (Penal Law §§
110.00, 160.05), defendant contends that Supreme Court erred in
imposing an enhanced sentence without conducting a sufficient inquiry
into his alleged violation of the conditions of the plea agreement
(see People v Outley, 80 NY2d 702, 713). Because defendant “failed to
request such a hearing and did not move to withdraw his plea on that
ground,” his contention is unpreserved for our review (People v Scott,
101 AD3d 1773, 1773, lv denied 21 NY3d 1019). In any event, the court
was not required to conduct an inquiry because defendant was
rearrested prior to sentencing, in violation of the plea agreement,
and he did not “deny that he committed the new offense[s] or otherwise
challenge the validity of his postplea arrest” (People v Mills, 90
AD3d 1518, 1519, lv denied 18 NY3d 960).

     We agree with defendant that the waiver of the right to appeal
does not encompass his challenge to the severity of the sentence
because the court, during the plea colloquy, merely advised him that
he was waiving his right to appeal from the conviction (see People v
Maracle, 19 NY3d 925, 927). We nevertheless reject defendant’s
contention that the enhanced sentence is unduly harsh and severe.
Notably, although the court could have sentenced defendant as an adult
because of his violation of the plea agreement, it adhered to its
promise to adjudicate him a youthful offender. We also note that
                                 -2-                           334
                                                         KA 12-01706

defendant participated in a violent attack upon the victim, and that
this case was not his first contact with the criminal justice system.




Entered:   March 28, 2014                       Frances E. Cafarell
                                                Clerk of the Court
