PEOPLE v. BRIEN (2012)

Defendant appeals from a judgment convicting him upon his plea of guilty of gang assault in the first degree (Penal Law § 120.07). Contrary to defendant's contention, the record establishes that he knowingly, voluntarily and intelligently waived the right to appeal (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). That valid waiver forecloses any challenge by defendant to the severity of the sentence (see id. at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46), including his contention that the sentence is unduly harsh and severe because it is directed to run consecutively to a prior undischarged term of incarceration (cf. People v. Springstead, 57 A.D.3d 1397, 1397–1398, 871 N.Y.S.2d 561, lv. denied 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099).

Defendant further contends that County Court erred in imposing an enhanced sentence based upon his postplea conduct by directing that the term of incarceration for his gang assault conviction run consecutively with the prior undischarged term of incarceration. Although that contention survives defendant's valid waiver of the right to appeal (see People v. Dietz, 66 A.D.3d 1400, 1400, 885 N.Y.S.2d 811, lv. denied 13 N.Y.3d 906, 895 N.Y.S.2d 320, 922 N.E.2d 909; People v. Ibrahim, 48 A.D.3d 1095, 1095, 849 N.Y.S.2d 850, lv. denied 10 N.Y.3d 864, 860 N.Y.S.2d 491, 890 N.E.2d 254), defendant did not move to withdraw his plea and therefore failed to preserve his contention for our review. In any event, the record establishes that the court did not impose an enhanced sentence and thus defendant's contention lacks merit (see Ibrahim, 48 A.D.3d at 1095, 849 N.Y.S.2d 850; see also Dietz, 66 A.D.3d at 1400, 885 N.Y.S.2d 811). Indeed, the court advised defendant at the plea proceeding that he should “expect” to receive and, “in all likelihood,” would receive a consecutive sentence. Even assuming, arguendo, that the court enhanced defendant's sentence, we conclude that the record supports the court's determination that defendant's postplea conduct warranted the imposition of a consecutive sentence. Finally, we reject defendant's contention that the court was bound by the recommendation in the presentence report that defendant be sentenced to a concurrent term of incarceration (see People v. Mills, 17 A.D.3d 712, 713, 793 N.Y.S.2d 228, lv. denied 5 N.Y.3d 766, 801 N.Y.S.2d 260, 834 N.E.2d 1270; People v. LaMarche, 253 A.D.2d 944, 944, 678 N.Y.S.2d 914).

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

MEMORANDUM: