People v. Bracy, 2010-03734

• Decision Date: 12 August 2015
• Docket Number: 2010-03734
• Citation: 131 A.D.3d 538,15 N.Y.S.3d 397,2015 N.Y. Slip Op. 06514
• Parties: The PEOPLE, etc., respondent, v. Laikuan BRACY, appellant.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 538

15 N.Y.S.3d 397

2015 N.Y. Slip Op. 06514

The PEOPLE, etc., respondent

v.Laikuan BRACY, appellant.

2010-03734

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

Aug. 12, 2015.

Seymour W. James, Jr., New York, N.Y. (Desiree Sheridan of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Tina Grillo of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hirsch, J.), rendered March 26, 2010, convicting him of robbery in the third degree and petit larceny, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

While 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 ), that waiver does not preclude appellate review of his current claim that he was denied due process at sentencing when the Supreme Court determined that his postplea arrest for an unrelated matter violated a condition of his plea agreement (see People v. Youmans, 106 A.D.3d 1036, 965 N.Y.S.2d 381 ; People v. Arrington, 94 A.D.3d 903, 941 N.Y.S.2d 877 ).

However, to the extent that the defendant contends that the Supreme Court erred in failing to hold a hearing to explore the legitimacy of the basis for his new arrest, the contention is unpreserved for appellate review, as he never requested such a hearing (see People v. Cousar, 128 A.D.3d 716, 9 N.Y.S.3d 96 ; People v. Stafford, 115 A.D.3d 683, 981 N.Y.S.2d 566 ; People v. Bradshaw, 105 A.D.3d 758, 961 N.Y.S.2d 797 ; People v. Kitchens, 46 A.D.3d 577, 846 N.Y.S.2d 625 ). In any event, the defendant's contention is without merit, as no formal hearing was required, and the court conducted a sufficient inquiry and properly relied on the indictment of the defendant on the new charges in determining the legitimacy of the arrest (see People v. Outley, 80 N.Y.2d 702, 712–714, 594 N.Y.S.2d 683, 610 N.E.2d 356 ; People v. Ricketts, 27 A.D.3d 488, 811 N.Y.S.2d 103 ; People v. Coleman, 266 A.D.2d 227, 697 N.Y.S.2d 683 ; People v. Yancey, 247 A.D.2d 561, 668 N.Y.S.2d 481 ; People v. Ruffin, 208 A.D.2d 657, 617 N.Y.S.2d 333 ). In this regard, although the defendant was afforded ample opportunity to address the validity of the basis for the new arrest, he presented nothing but vague, conclusory, and speculative assertions concerning the new charges. Similarly, the court was not required to postpone sentencing indefinitely to await the resolution of the defendant's new charges (see generally People v. Yancey, 247 A.D.2d 561, 668 N.Y.S.2d 481 ). Since the record supports the court's conclusion that the defendant's new arrest constituted a violation of a condition of the plea...