THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DEVON CAPERS DEFENDANT APPELLANT (2011)

MEMORANDUM AND ORDER

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 robbery in the third degree (Penal Law § 160.05).   We reject defendant's contention that County Court erred in imposing an enhanced sentence.   First, defendant violated a condition of the plea agreement by failing to appear in court on the scheduled sentencing date, and thus the court properly imposed an enhanced sentence based on that violation (see People v. VanDeViver, 56 AD3d 1118, 1119, lv denied 11 NY3d 931, 12 NY3d 788).   Second, defendant was arrested after the plea and before sentencing for crimes allegedly committed during that interim period, also in violation of a condition of the plea agreement, and “the record establishes that the information supporting the arrest was reliable and accurate” (People v. Hall, 38 AD3d 1289, 1290 [internal quotation marks omitted] ).   Indeed, the evidence introduced at the inquiry pursuant to People v. Outley (80 N.Y.2d 702, 713) established that an indictment had been issued upon the charges underlying the postplea arrest (see People v. Smith, 248 A.D.2d 179, lv denied 91 N.Y.2d 1013).

The record belies the further contention of defendant that the court informed him that he would not receive an enhanced sentence unless he violated all of the conditions of the plea agreement (cf.  People v. Williams, 195 A.D.2d 1040).   Rather, the record establishes that the court indicated that an enhanced sentence could be imposed unless defendant did “everything” required by the conditions of the plea agreement.   We thus conclude that the court properly enhanced the sentence based upon defendant's failure to comply with the conditions of the plea agreement (see People v. Figgins, 87 N.Y.2d 840).

Patricia L. Morgan

Clerk of the Court