People v. Arrington

• Decision Date: 10 April 2012
• Citation: People v. Arrington, 94 A.D.3d 903, 941 N.Y.S.2d 877, 2012 N.Y. Slip Op. 2702 (N.Y. App. Div. 2012)
• Parties: The PEOPLE, etc., respondent, v. Leonard ARRINGTON, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02702

94 A.D.3d 903

941 N.Y.S.2d 877

The PEOPLE, etc., respondent,

v.Leonard ARRINGTON, appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 10, 2012.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy of counsel; Matthew C. Frankel on the brief), for respondent.

Marianne Karas, Armonk, N.Y., for appellant.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Jaeger, J., at plea; Aaron, J., at sentencing), rendered February 15, 2011, convicting him of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Callahan, 80 N.Y.2d 273, 590 N.Y.S.2d 46, 604 N.E.2d 108; People v. Seaberg, 74 N.Y.2d 1, 543 N.Y.S.2d 968, 541 N.E.2d 1022). Although the defendant's waiver is thus valid, it does not preclude review of his claim that he was denied his right to due process because the County Court did not hold an evidentiary hearing regarding the basis for his post-plea arrest on unrelated crimes before imposing an enhanced sentence (see People v. Butler, 49 A.D.3d 894, 895, 854 N.Y.S.2d 506; People v. Kitchens, 46 A.D.3d 577, 578, 846 N.Y.S.2d 625; People v. Ricketts, 27 A.D.3d 488, 811 N.Y.S.2d 103; People v. Garner, 18 A.D.3d 669, 670, 795 N.Y.S.2d 336; People v. Stowe, 15 A.D.3d 597, 598, 790 N.Y.S.2d 521; People v. Scott P., 275 A.D.2d 723, 713 N.Y.S.2d 478; People v. Miles, 268 A.D.2d 489, 490, 703 N.Y.S.2d 491). However, this issue is unpreserved for appellate review because the defendant never objected to the adequacy of the inquiry conducted by the County Court, or moved to withdraw his plea (see People v. Kitchens, 46 A.D.3d at 578, 846 N.Y.S.2d 625; People v. Darcy, 34 A.D.3d 230, 231, 823 N.Y.S.2d 77; People v. Benn, 23 A.D.3d 574, 806 N.Y.S.2d 211; People v. Potter, 288 A.D.2d 330, 732 N.Y.S.2d 586; People v. Miles, 268 A.D.2d at 490, 703 N.Y.S.2d 491). In any event, the inquiry conducted by the County Court was sufficient to determine that there was a legitimate basis for the defendant ‘s post-plea arrest, and thus satisfied the requirements of due process (see People v. Outley, 80 N.Y.2d 702, 712–713, 594 N.Y.S.2d 683, 610 N.E.2d 356; see also People v. Valencia, 3 N.Y.3d 714, 715, 786 N.Y.S.2d 374, 819 N.E.2d 990; People v. Timberlake, 82 A.D.3d 1134, 1135, 919 N.Y.S.2d 352; People v. Serrano, 79 A.D.3d 772, 911 N.Y.S.2d 910; People v. Potter, 288 A.D.2d at 330, 732 N.Y.S.2d 586).

The defendant's valid waiver of his right to appeal precludes review of his remaining contentions, including his claim that his enhanced sentence was excessive ( see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222; People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416; People v. Crews, 92 A.D.3d 795, 938 N.Y.S.2d 475; People v. Pook, 73 A.D.3d 952, 953, 899 N.Y.S.2d 872), his ineffective assistance of counsel argument, which is unrelated to the voluntariness of his plea ( see People v. Duah, 91 A.D.3d 884, 936 N.Y.S.2d 907; People v. Yarborough, 83 A.D.3d 875, 920 N.Y.S.2d 681), and his challenge to the procedure utilized in sentencing him ( see People v. Collier, 71 A.D.3d 909, 910, 895 N.Y.S.2d 848).

SKELOS, J.P., ENG, BELEN and COHEN, JJ., concur.