People v. Driscoll ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: August 13, 2015 106583
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
RAMONN S. DRISCOLL,
Appellant.
________________________________
Calendar Date: June 8, 2015
Before: Peters, P.J., Rose, Lynch and Clark, JJ.
__________
Abbie Goldbas, Utica, for appellant.
Mark D. Suben, District Attorney, Cortland (Zela E.
Brotherton of counsel), for respondent.
__________
Appeal from a judgment of the County Court of Cortland
County (Campbell, J.), rendered March 27, 2014, convicting
defendant upon his plea of guilty of the crime of criminal
possession of a controlled substance in the third degree.
In satisfaction of a five-count indictment, defendant
pleaded guilty to criminal possession of a controlled substance
in the third degree. As part of the plea agreement, he was to
waive his right to appeal and be sentenced to a cap of one year
of incarceration, followed by one year of postrelease
supervision. In addition, County Court imposed certain
conditions on the sentence advising defendant, among other
things, that if he was arrested prior to sentencing, it would not
be obligated to impose the agreed-upon sentence. Before
sentencing, defendant was arrested on two separate occasions.
Although defense counsel questioned the validity of these
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arrests, County Court imposed an enhanced sentence of three years
in prison, to be followed by two years of postrelease
supervision, based upon defendant's violation of the sentencing
conditions.1 Defendant declined to complete his signing of the
written waiver of his right to appeal at sentencing and he now
appeals.
Defendant's sole challenge is to County Court's imposition
of the enhanced sentence based upon his two arrests. When the
validity of a postplea arrest is called into question, "the court
must conduct an inquiry at which the defendant has an opportunity
to show that the arrest is without foundation" (People v Outley,
80 NY2d 702, 713 [1993], cert denied 519 U.S. 964 [1996]; see
People v Fiammegta, 14 NY3d 90, 97 [2010]; People v Smalls, 85
AD3d 1450, 1451 [2011]). Significantly, "[t]he nature and extent
of the inquiry – whether through a summary hearing pursuant to
CPL 400.10 or some other fair means – is within the court's
discretion [but it] must be of sufficient depth, . . . so that
the court can be satisfied . . . of the existence of a legitimate
basis for the arrest" (People v Outley, 80 NY2d at 713 [internal
citation omitted]).
Here, County Court did not conduct a formal evidentiary
hearing regarding the validity of defendant's two arrests, and
one was not required (see id. at 713; People v Talbot, 114 AD3d
1000, 1001 [2014]). Instead, the court made an on-the-record
inquiry during the sentencing proceeding at which it considered
the accusatory instruments, supporting documentation and
arguments of counsel before concluding that a legitimate basis
existed for defendant's arrests. Under the circumstances
presented, we conclude that County Court's inquiry was adequate
and established that a legitimate basis existed for defendant's
arrests thereby warranting its imposition of the enhanced
sentence (see People v Talbot, 114 AD3d at 1001; People v Paneto,
112 AD3d 1230, 1231
[2013], lv denied 23 NY3d 1023 [2014]).
1
County Court denied defendant's oral motion to withdraw
his plea at sentencing.
-3- 106583
Peters, P.J., Rose, Lynch and Clark, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court