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

1287
KA 10-00522
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

PAUL VERBITSKY, DEFENDANT-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.

JOHN H. CRANDALL, DISTRICT ATTORNEY, HERKIMER (JACQUELYN M. ASNOE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Herkimer County Court (Patrick L.
Kirk, J.), rendered August 4, 2008. The judgment convicted defendant,
upon his plea of guilty, of attempted burglary in the second 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 attempted burglary in the second degree
(Penal Law §§ 110.00, 140.25 [2]). We reject defendant’s contention
that County Court erred in imposing an enhanced term of incarceration
based on postplea acts committed by defendant. “[T]o satisfy due
process, a sentencing court must, prior to imposing the prison
alternative pursuant to a plea agreement, conduct an inquiry
sufficient to conclude that a violation of the plea agreement
occurred” (People v Valencia, 3 NY3d 714, 715; see People v Outley, 80
NY2d 702, 713), and the court made the requisite inquiry here (see
Valencia, 3 NY3d at 715; People v McGrath, 67 AD3d 1475, 1476, lv
denied 14 NY3d 803). We reject defendant’s further contention that
the sentence is unduly harsh or severe. Finally, defendant failed to
preserve for our review his contention that the sentence imposed
constituted cruel and unusual punishment (see People v Rogers, 63 AD3d
1631, lv denied 13 NY3d 745, 749; People v Clark, 61 AD3d 1426, 1427,
lv denied 12 NY3d 913) and, in any event, that contention lacks merit
(see People v Holmquist, 5 AD3d 1041, lv denied 2 NY3d 800).




Entered:    December 23, 2011                      Frances E. Cafarell
                                                   Clerk of the Court
