MOFFETT, TAHEED M., PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1394
KA 10-01255
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
TAHEED M. MOFFETT, ALSO KNOWN AS TAHEED MOFFETT,
ALSO KNOWN AS T. MOFFETT, DEFENDANT-APPELLANT.
GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF
COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (DAVID E. GANN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered May 11, 2010. The judgment convicted defendant,
upon his plea of guilty, of criminal possession of a controlled
substance in the fifth degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of criminal possession of a controlled
substance in the fifth degree (Penal Law § 220.06 [1]). “Defendant
failed to preserve for our review his contention that County Court
erred in failing to advise him of his right to a hearing concerning
his alleged violations of the plea agreement prior to imposing an
enhanced sentence” (People v Gibson, 52 AD3d 1227, 1227; see also
People v Sprague, 82 AD3d 1649, lv denied 17 NY3d 801; People v Perry,
252 AD2d 990, lv denied 92 NY2d 929). In any event, that contention
is without merit. Pursuant to the plea agreement, in order to receive
the promised sentence, defendant was required to comply with a curfew,
to appear as required by the probation officer preparing the
presentence report and to remain arrest free. Defendant admitted that
he had been rearrested and violated his curfew (see People v Valencia,
3 NY3d 714, 715-716; People v Laskowski, 46 AD3d 1383), and he did not
contest the remaining accusations concerning violations of the
sentencing conditions. Consequently, we conclude that defendant was
not entitled to a hearing before the court enhanced his sentence (see
generally People v Figgins, 87 NY2d 840).
-2- 1394
KA 10-01255
The sentence is not unduly harsh or severe.
Entered: December 23, 2011 Frances E. Cafarell
Clerk of the Court