PEOPLE v. ABREU (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ira H. Margulis, J.), rendered September 18, 2023, convicting him of assault in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant entered a plea of guilty to assault in the first degree (Penal Law § 120.10[1] ), in exchange for the Supreme Court's promise that it would sentence him to a term of imprisonment of 13 years, to be followed by 5 years of postrelease supervision.  As a condition of the court's promised sentence, the defendant agreed, inter alia, to cooperate with the Department of Probation (hereinafter the DOP) and was specifically warned that “If you do talk to them, and I read anything from them like, Oh I took the plea because I thought it was a good deal, but I didn't do anything ․ you will not get your plea back, and I will give you 25 years in jail.”  The defendant was interviewed by the DOP and denied his guilt, indicating that he intended to take back his plea at sentencing.

“ ‘A court is free to impose a condition as part of a plea arrangement requiring that a defendant cooperate with the DOP by, among other things, truthfully answering questions and not denying guilt during a DOP interview.  The violation of an explicit and objective plea condition that was accepted by the defendant can result in the imposition of an enhanced sentence’ ” (People v. Richard, 235 A.D.3d 1012, 1013, 228 N.Y.S.3d 322, quoting People v. Volpe, 226 A.D.3d 708, 709, 208 N.Y.S.3d 296;  see People v. Hicks, 98 N.Y.2d 185, 189, 746 N.Y.S.2d 441, 774 N.E.2d 205).  “Due process ․ requires that, before imposing an enhanced sentence, the court conduct an inquiry sufficient for it to determine that the defendant indeed violated the plea condition” (People v. Guzman–Hernandez, 135 A.D.3d 957, 957, 23 N.Y.S.3d 582;  see People v. Valencia, 3 N.Y.3d 714, 715, 786 N.Y.S.2d 374, 819 N.E.2d 990).

Here, the condition of the defendant's plea agreement that he cooperate with the DOP by, inter alia, not claiming that he “didn't do anything” was explicit and objective, and was acknowledged, understood, and accepted by the defendant as part of the plea agreement (see People v. Hicks, 98 N.Y.2d at 189, 746 N.Y.S.2d 441, 774 N.E.2d 205;  People v. Richard, 235 A.D.3d 1012, 228 N.Y.S.3d 322).  The defendant violated that condition by, among other things, denying his involvement in the subject crime, and this violation permitted the Supreme Court to impose an enhanced sentence (see People v. Hicks, 98 N.Y.2d at 189, 746 N.Y.S.2d 441, 774 N.E.2d 205;  People v. Ramirez, 175 A.D.3d 569, 570, 104 N.Y.S.3d 897).  Accordingly, the court did not err in imposing an enhanced sentence.

Contrary to the defendant's contention, he was not deprived of his constitutional right to counsel at sentencing, as defense counsel did not take a position on the defendant's motion to withdraw his plea of guilty that was adverse to the defendant (see People v. Mitchell, 21 N.Y.3d 964, 970 N.Y.S.2d 919, 993 N.E.2d 405;  People v. Stratton, 237 A.D.3d 861, 229 N.Y.S.3d 243).  Therefore, contrary to the defendant's contention, the appointment of a new attorney to represent him on that motion was not required (see People v. Edwards, 223 A.D.3d 840, 841, 203 N.Y.S.3d 710;  People v. Pointer, 218 A.D.3d 499, 500, 192 N.Y.S.3d 239).

The defendant's valid “waiver of the right to appeal does not extend to the imposition of the enhanced sentence because the Supreme Court did not inform the defendant of the maximum sentence which could be imposed if he failed to comply with the conditions of the plea until after he agreed to waive his right to appeal” (People v. Wynne, 206 A.D.3d 1013, 1014, 168 N.Y.S.3d 877;  see People v. McNeil, 164 A.D.3d 608, 608, 78 N.Y.S.3d 682).  Thus, the waiver does not preclude appellate review of his excessive sentence claim.  However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contention is without merit.

BRATHWAITE NELSON, J.P., WAN, LOVE and GOLDBERG VELAZQUEZ, JJ., concur.