PEOPLE v. HENDRIX (2009)

 Defendant appeals from a judgment convicting her upon her plea of guilty of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1] ).   We agree with defendant that her waiver of the right to appeal is invalid inasmuch as the record fails to “ establish that [she] understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  see People v. Cain, 29 A.D.3d 1157, 814 N.Y.S.2d 417;  People v. Popson, 28 A.D.3d 870, 812 N.Y.S.2d 194).   The further contention of defendant that her plea was not voluntarily entered because she provided only monosyllabic responses to County Court's questions is actually a challenge to the factual sufficiency of the plea allocution (see People v. Bailey, 49 A.D.3d 1258, 852 N.Y.S.2d 892, lv. denied 10 N.Y.3d 932, 862 N.Y.S.2d 338, 892 N.E.2d 404).   Although that contention is not encompassed by the invalid waiver of the right to appeal, defendant failed to preserve that contention for our review (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Collins, 45 A.D.3d 1472, 846 N.Y.S.2d 829, lv. denied 10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250).   In any event, that contention lacks merit.  “The unequivocal affirmative responses of defendant to [the c]ourt's questions established all of the essential elements of” the crime to which she pleaded guilty (People v. Ramos, 56 A.D.3d 1180, 1181, 866 N.Y.S.2d 893, lv. denied 12 N.Y.3d 761, 904 N.E.2d 850;  see People v. Harris, 51 A.D.3d 1335, 860 N.Y.S.2d 643, lv. denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101).

 Contrary to the further contention of defendant, the court did not abuse its discretion in enhancing the sentence without conducting a hearing to determine the validity of her arrest during the time between the plea and the sentencing hearing.   Defendant did not deny that she committed the crime for which she was arrested or otherwise challenge the validity of the arrest (see People v. Huggins, 45 A.D.3d 1380, 845 N.Y.S.2d 609, lv. denied 9 N.Y.3d 1006, 850 N.Y.S.2d 394, 880 N.E.2d 880;  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, 713, 594 N.Y.S.2d 683, 610 N.E.2d 356).

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

MEMORANDUM: