The People, etc., respondent, v. Monther Zobe, also known as Gunther Ezupe, appellant. (2011)

Submitted-November 1, 2010

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Hubert, J.), rendered June 13, 2008, convicting him of insurance fraud in the third degree, upon his plea of guilty, and imposing sentence.   Justice Mastro has been substituted for the late Justice Fisher (see 22 NYCRR 670.1 [c] ).

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed;  as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Westchester County, for a more thorough inquiry pursuant to People v. Outley (80 N.Y.2d 702) and a determination on the issue of whether the defendant violated a condition of his plea agreement that he be truthful with the Westchester County Department of Probation, and for resentencing thereafter.

The defendant pleaded guilty to insurance fraud in the third degree (Penal Law § 176.20) in exchange for an agreed-upon sentence.   During the plea colloquy, the defendant stated that he understood that one of the conditions of the plea agreement was that he was required to answer questions posed by the Westchester County Department of Probation (hereinafter the probation department) truthfully and in a manner consistent with the statements he made to the County Court during the plea colloquy.   The defendant also indicated that he understood that if he violated this condition, the County Court would not allow him to withdraw his plea, but would impose an enhanced sentence, up to the maximum allowed.

The County Court enhanced the defendant's sentence on the ground that the defendant violated the plea agreement by failing to be truthful with the probation department.   However, we modify the judgment of conviction to vacate the sentence imposed because the County Court failed to conduct a sufficient inquiry pursuant to People v. Outley (80 N.Y.2d 702), before imposing the enhanced sentence upon the defendant.

When the defendant was given an opportunity to explain the statements in the presentence report at the sentencing hearing, the defendant stated that, although he was guilty of the underlying crime of insurance fraud in the third degree, and never denied his guilt to the probation department, his probation officer misunderstood what he had told her in connection with the use of force by the Yonkers Police Department.   Further, in response to questioning by the County Court, the defendant stated, “I am honest with you, Your Honor ․ What I said on paper, it's the truth Your Honor.   It is not, I never report the car stolen.   I never report it.   I report it to the insurance, but never report it to the police station.   There is no alarm on the car.   That's the truth.”   The County Court then sentenced the defendant to the enhanced sentence.

A court may enhance a defendant's sentence for breach of the condition that he truthfully answer all of the questions asked of him by the probation department (see People v. Hicks, 98 N.Y.2d 185).   Here, however, the County Court failed to conduct sufficient inquiry, in accordance with the requirements of due process, to conclude that the defendant breached the condition of the plea agreement that he answer the probation department's questions truthfully (see People v. Outley, 80 N.Y.2d 702;  People v. Powell, 55 AD3d 632;  People v. Green, 45 AD3d 780).   Under the circumstances of this case, the defendant should have been given an opportunity to present evidence that his statements to the probation department did not contradict his statements to the County Court during the plea proceedings (see People v. Powell, 55 AD3d at 634).   Thus, the matter must be remitted to the County Court, Westchester County, for a more thorough inquiry pursuant to People v. Outley (80 N.Y.2d at 713) and a determination on the issue of whether the defendant violated the condition of his plea agreement that he be truthful with the probation department, and for resentencing thereafter.

The defendant's remaining contentions are without merit.

MASTRO, J.P., FLORIO, LEVENTHAL and HALL, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court