People v. Nicholson
| Decision Date | 24 April 2008 |
| Docket Number | 101046. |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. NYRON NICHOLSON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Malone Jr., J.
In satisfaction of two indictments charging him with numerous drug-related crimes, defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree. Under the terms of the plea agreement, he waived his right to appeal, agreed to be sentenced to 3 to 9 years in prison and signed a written "cooperation" agreement requiring him to assist law enforcement officials in certain investigations. At sentencing, defendant admitted that he did not fulfill the terms of the cooperation agreement and, as result, County Court imposed an enhanced sentence of 4 to 12 years in prison. No direct appeal followed, but defendant eventually brought the present CPL article 440 motion seeking to vacate the judgment of conviction or, alternatively, to set aside the sentence. County Court denied the motion and this Court granted permission to appeal.
Initially, defendant claims that the written cooperation agreement cannot be considered part of the plea agreement because it was not referred to by that name at the plea hearing and that, therefore, the enhancement of his sentence based upon his failure to comply with it was improper. Preliminarily, we note that defendant is not precluded by his waiver of appeal from raising this claim (see People v Terrell, 41 AD3d 1044, 1045 [2007]; People v Hastings, 24 AD3d 954, 955 [2005]). Nevertheless, we find it to be without merit. Viewed in the context of the plea proceedings, the cooperation agreement was signed by defendant and his counsel the same day that defendant entered his guilty plea and it is clearly the agreement referenced at the plea hearing. The fact that it was not identified as such in open court is understandable given the sensitive nature of the subject matter and the need for confidentiality. Significantly, prior to defendant's entry of his guilty plea, County Court expressly stated that the execution of the written agreement was one of the terms of the plea agreement, and defendant communicated his understanding on the record. County Court informed defendant that if he failed to comply with the terms of the plea agreement, it would not be obligated to impose the promised sentence. In view of the foregoing, we find no error in County Court's imposition of an enhanced sentence based upon defendant's failure to comply with the terms of the plea agreement (see People v Figgins, 87 NY2d 840, 841 [1995]; People v Davis, 30 AD3d 893, 894-895 [2006], lv denied 7 NY3d 847 [2006]).
Defendant further contends that he was deprived of the effective assistance of counsel. This claim,...
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