PEOPLE v. BUTLER (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.), rendered April 5, 2006, convicting him of attempted assault in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

 The form waiver of the right to appeal signed by the defendant contained a misstatement of the applicable law and was misleading (see People v. Pollenz, 67 N.Y.2d 264, 502 N.Y.S.2d 417, 493 N.E.2d 541;  People v. Hurd, 44 A.D.3d 791, 792, 844 N.Y.S.2d 73, lv. denied 9 N.Y.3d 1006, 850 N.Y.S.2d 394, 880 N.E.2d 880).   Therefore, the purported waiver was invalid and appellate review of the defendant's claim that the sentence imposed was excessive is not foreclosed.

 We note that, apart from the invalidity of the waiver, a general waiver of the right to appeal does not foreclose review of the defendant's contention that he was denied due process in the hearing conducted to determine if he violated a condition of the plea agreement (see People v. Kitchens, 46 A.D.3d 577, 846 N.Y.S.2d 625;  People v. Garner, 18 A.D.3d 669, 669-670, 795 N.Y.S.2d 336;  People v. Stowe, 15 A.D.3d 597, 598, 790 N.Y.S.2d 521).   The hearing that was conducted was thorough and sufficient to support the Supreme Court's determination that the defendant's statements to the probation department were untruthful (see People v. Kinloch, 7 A.D.3d 734, 735, 777 N.Y.S.2d 185).   The hearing was conducted in accordance with the requirements of due process (see People v. Valencia, 3 N.Y.3d 714, 786 N.Y.S.2d 374, 819 N.E.2d 990;  People v. Hicks, 98 N.Y.2d 185, 746 N.Y.S.2d 441, 774 N.E.2d 205;  People v. Outley, 80 N.Y.2d 702, 594 N.Y.S.2d 683, 610 N.E.2d 356, cert. denied sub nom. Maietta v. Artuz, 519 U.S. 964, 117 S.Ct. 386, 136 L.Ed.2d 303).   The condition of the plea that the defendant be truthful in responding to the inquiries of the probation department was explicit and objective, and was acknowledged, understood, and accepted by the defendant as part of the plea agreement.   The defendant's violation of that condition allowed the Supreme Court to impose the enhanced sentence.

The enhanced sentence was part of the negotiated plea agreement (see People v. McCauley, 37 A.D.3d 739, 832 N.Y.S.2d 206;  People v. Rosato, 37 A.D.3d 741, 828 N.Y.S.2d 911;  People v. Rodriguez, 32 A.D.3d 481, 819 N.Y.S.2d 482).   In any event, the defendant's contention that the sentence imposed was excessive is without merit (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).