PEOPLE v. HUGGINS (2007)

 Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39[1] ).   We agree with defendant that his waiver of the right to appeal does not encompass his contention that County Court erred in imposing an enhanced sentence based upon his postplea conduct (see People v. Lighthall, 6 A.D.3d 1170, 776 N.Y.S.2d 404, lv. denied 3 N.Y.3d 643, 782 N.Y.S.2d 414, 816 N.E.2d 204;  People v. Baxter, 302 A.D.2d 950, 757 N.Y.S.2d 915, lv. denied 99 N.Y.2d 652, 760 N.Y.S.2d 116, 790 N.E.2d 290).   Nevertheless, we reject defendant's contention that the court failed to make a sufficient inquiry before imposing the enhanced sentence.   Defendant did not deny his involvement in the postplea crime or argue that there was no legitimate basis for his arrest, and thus the court did not err in failing to conduct an inquiry into the matter (see People v. Wilson, 257 A.D.2d 674, 685 N.Y.S.2d 93, lv. denied 93 N.Y.2d 981, 695 N.Y.S.2d 68, 716 N.E.2d 1113;  see generally People v. Outley, 80 N.Y.2d 702, 712-713, 594 N.Y.S.2d 683, 610 N.E.2d 356).   Defendant's further contention that the enhanced sentence is unduly harsh and severe also is not encompassed by the waiver of the right to appeal “because the court failed to advise defendant of the potential period of incarceration that could be imposed” for an enhanced sentence (People v. Trisvan, 8 A.D.3d 1067, 778 N.Y.S.2d 398, lv. denied 3 N.Y.3d 682, 784 N.Y.S.2d 20, 817 N.E.2d 838;  cf. People v. Jackson, 34 A.D.3d 1318, 824 N.Y.S.2d 851, lv. denied 8 N.Y.3d 923, 834 N.Y.S.2d 514, 866 N.E.2d 460;  see generally People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416).   We conclude, however, that the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: