PEOPLE v. LIGHTHALL

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Richard LIGHTHALL, Defendant-Appellant.

Decided: April 30, 2004

PRESENT:  PIGOTT, JR., P.J., PINE, SCUDDER, GORSKI, AND HAYES, JJ. David Giglio, Utica, for Defendant-Appellant.

 On appeal from a judgment convicting him upon his plea of guilty of grand larceny in the fourth degree (Penal Law § 155.30 [5] ), defendant contends that County Court lacked subject matter jurisdiction to accept his plea because he was denied his right to testify before the grand jury.   The denial of an opportunity to testify before the grand jury, however, does not “call into question the court's jurisdiction nor [is it] of constitutional magnitude” (People v. Rook, 201 A.D.2d 931, 931, 610 N.Y.S.2d 903;  see generally People v. Hansen, 95 N.Y.2d 227, 231, 715 N.Y.S.2d 369, 738 N.E.2d 773).   Therefore, our review of that contention is foreclosed by defendant's valid waiver of the right to appeal (see People v. Mitchell, 274 A.D.2d 957, 711 N.Y.S.2d 814, lv. denied 95 N.Y.2d 891, 715 N.Y.S.2d 383, 738 N.E.2d 787;  People v. Allred, 270 A.D.2d 926, 706 N.Y.S.2d 656, lv. denied 95 N.Y.2d 863, 715 N.Y.S.2d 217, 738 N.E.2d 365) as well as by defendant's plea of guilty (see People v. Vincent, 305 A.D.2d 1108, 1109, 757 N.Y.S.2d 920, lv. denied 100 N.Y.2d 588, 764 N.Y.S.2d 399, 796 N.E.2d 491;  Rook, 201 A.D.2d 931, 610 N.Y.S.2d 903).

 The waiver of the right to appeal, however, “does not encompass the further contention of defendant that the court erred in imposing an enhanced sentence based upon his postplea conduct” (People v. Baxter, 302 A.D.2d 950, 951, 757 N.Y.S.2d 915, lv. denied 99 N.Y.2d 652, 760 N.Y.S.2d 116, 790 N.E.2d 290;  see People v. Parker, 271 A.D.2d 63, 68, 711 N.Y.S.2d 656, lv. denied 95 N.Y.2d 967, 722 N.Y.S.2d 485, 745 N.E.2d 405).   Nevertheless, we reject defendant's contention that the court failed to conduct a sufficient inquiry to satisfy itself that there was a legitimate basis for defendant's postplea arrest (see generally People v. Outley, 80 N.Y.2d 702, 713, 594 N.Y.S.2d 683, 610 N.E.2d 356).   The prosecutor informed the court that an off-duty police officer observed defendant breaking into a building.   Another officer arrested defendant inside the building.   Both officers were named (cf. People v. McClemore, 276 A.D.2d 32, 36-37, 716 N.Y.S.2d 497), and the prosecutor informed the court that he had interviewed the officers and reviewed their reports.   We conclude that the court properly enhanced the sentence after assuring itself that the information supporting the arrest was reliable and accurate (see Outley, 80 N.Y.2d at 712, 594 N.Y.S.2d 683, 610 N.E.2d 356;  cf. People v. Naranjo, 89 N.Y.2d 1047, 1048, 659 N.Y.S.2d 826, 681 N.E.2d 1272).

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

MEMORANDUM: