

People v Saaverda (2015 NY Slip Op 07297)





People v Saaverda


2015 NY Slip Op 07297


Decided on October 7, 2015


Appellate Division, Second 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 October 7, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

JOHN M. LEVENTHAL, J.P.
CHERYL E. CHAMBERS
LEONARD B. AUSTIN
ROBERT J. MILLER, JJ.


2013-03479
 (Ind. No. 3099/10)

[*1]The People of the State of New York, respondent,
vFrancisco Saaverda, appellant.


Lynn W. L. Fahey, New York, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jeanette Lifschitz, and Aurora Alvarez-Calderon of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Modica, J.), rendered March 19, 2013, convicting him of burglary in the second degree, upon his plea of guilty, and sentencing him to a determinate term of imprisonment of 15 years, followed by a period of postrelease supervision.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed from a determinate term of imprisonment of 15 years to a determinate term of imprisonment of 8 years; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, he was not deprived of his right to due process at a hearing that was conducted to determine whether he violated a condition of the plea agreement (see People v Butler, 49 AD3d 894, 895; see also People v Cousar, 128 AD3d 716; People v Youmans, 106 AD3d 1036; People v Arrington, 94 AD3d 903; People v Miles, 268 AD2d 489). Here, the sentencing court conducted an inquiry sufficient to conclude that a violation of the plea agreement had occurred and, therefore, the court satisfied the requirements of due process (see People v Valencia, 3 NY3d 714, 715; People v Outley, 80 NY2d 702; People v Arrington, 94 AD3d 903).
Under the circumstances of this case, the defendant's purported waiver of his right to appeal does not extend to the imposition of the enhanced sentence that was imposed upon him (see People v Pianaforte, 126 AD3d 815, 816; see also People v Maracle, 19 NY3d 925). Thus, the waiver does not preclude review of his excessive sentence claim.
The enhanced sentence imposed was excessive to the extent indicated herein.
LEVENTHAL, J.P., CHAMBERS, AUSTIN and MILLER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


