People v. Ackerman
| Citation | 133 A.D.3d 1196,20 N.Y.S.3d 258 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Albert ACKERMAN, Defendant–Appellant. |
| Decision Date | 13 November 2015 |
| Court | New York Supreme Court Appellate Division |
133 A.D.3d 1196
20 N.Y.S.3d 258
The PEOPLE of the State of New York, Respondent,
v.
Albert ACKERMAN, Defendant–Appellant.
Supreme Court, Appellate Division, Fourth Department, New York.
Nov. 13, 2015.
Cara A. Waldman, Fairport, for Defendant–Appellant.
Albert Ackerman, Defendant–Appellant Pro Se.
Donald G. O'Geen, District Attorney, Warsaw (Vincent A. Hemming of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of aggravated criminal contempt (Penal Law § 215.52[1] ), defendant contends that County Court erred in imposing an enhanced sentence based upon his postplea arrest for violating an order of protection. We reject that contention. Defendant does not dispute that he was informed, at the time of his plea, that he could receive an enhanced sentence in the event that he committed any new crimes or got into any "trouble," but he contends that there was no legitimate basis for his postplea arrest. Although defendant's contention survives the valid waiver of the right to appeal (see People v. O'Brien, 98 A.D.3d 1264, 1264, 951 N.Y.S.2d 291, lv. denied 20 N.Y.3d 1063, 962 N.Y.S.2d 614, 985 N.E.2d 924 ), and is preserved for our review through defendant's motion to withdraw his plea on that ground (cf. People v. Fumia, 104 A.D.3d 1281, 1281, 960 N.Y.S.2d 826, lv. denied 21 N.Y.3d 1004, 971 N.Y.S.2d 255, 993 N.E.2d 1278 ), we nevertheless conclude that the contention lacks merit. It is well settled that "a court may not impose an enhanced sentence
unless ‘the court can be satisfied ... of the existence of a legitimate basis for the arrest,’ ... [and] here the existence of a legitimate basis was established by the admission of defendant that he violated an order of protection" (People v. Taylor, 286 A.D.2d 916, 916, 731 N.Y.S.2d 410, lv. denied 97 N.Y.2d 688, 738 N.Y.S.2d 304, 764 N.E.2d 408, quoting People v. Outley, 80 N.Y.2d 702, 713, 594 N.Y.S.2d 683, 610 N.E.2d 356 ; see Fumia, 104 A.D.3d at 1281–1282, 960 N.Y.S.2d 826 ). Contrary to defendant's contention, his violation of the order of protection was not an "innocent mistake." He admitted that he was well aware of the existence of the order; that the order prohibited him from having any contact with the person in whose favor the order had been issued; and that he knew that he could get in trouble for talking to that person. Despite such knowledge, defendant admitted to repeated contact with the person, including a joint vacation to Letchworth State Park. Although defendant contends that "there were no physical or verbal disputes between the parties" and that the contact was initiated by the person in whose favor the order had been issued, those facts are irrelevant to the issue whether he violated the clear and unambiguous terms of the order of protection that required him to have no contact with that person "EVEN IF INVITED" by that person. The sentence, as enhanced by the court, is not unduly harsh or severe.
Defendant further contends that he was improperly sentenced as a second felony offender because the court, in determining whether a Florida conviction could serve
as a predicate felony conviction, erroneously relied on the felony complaint instead of a superseding indictment, and thus improperly "extended or enlarged the allegations of the accusatory instrument" (People v. Yancy, 86 N.Y.2d 239, 247, 630 N.Y.S.2d 985, 654 N.E.2d 1233 ; see People v. De Aga, 74 A.D.3d 552, 553, 903 N.Y.S.2d 39 ). Inasmuch as defendant did not object to the introduction of the Florida felony complaint at the second felony offender hearing, he has failed to preserve his contention for our review (see People v. Samms, 95 N.Y.2d 52, 57, 710 N.Y.S.2d 310, 731 N.E.2d 1118 ; De...
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