PEOPLE v. BRANDEL

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Jeffrey P. BRANDEL, Defendant-Appellant.

Decided: July 01, 2005

PRESENT:  GREEN, J.P., GORSKI, MARTOCHE, SMITH, AND HAYES, JJ. Timothy P. Murphy, Lockport, for Defendant-Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him upon his plea of guilty of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2] ).   Defendant failed to object to the enhanced sentence or to move to withdraw his plea and thus failed to preserve for our review his contention that County Court erred in enhancing his sentence based upon his conduct while on interim probationary supervision (see People v. Zelter [Appeal No. 1], 6 A.D.3d 1103, 775 N.Y.S.2d 633, lv. denied 3 N.Y.3d 683, 784 N.Y.S.2d 22, 817 N.E.2d 840;  People v. Leonard, 306 A.D.2d 940, 761 N.Y.S.2d 916).   Moreover, it is undisputed that defendant was arrested while on interim probationary supervision, and he does not dispute that he violated a condition of his interim probationary supervision by failing to notify the probation department of his postplea arrest.   Thus, there is no merit to the contention of defendant that the court should have conducted a hearing on the issue whether he violated that condition before imposing an enhanced sentence (cf. People v. Outley, 80 N.Y.2d 702, 712-713, 594 N.Y.S.2d 683, 610 N.E.2d 356;  People v. Huffman, 288 A.D.2d 907, 908, 732 N.Y.S.2d 391, lv. denied 97 N.Y.2d 755, 742 N.Y.S.2d 615, 769 N.E.2d 361).   To the extent that the further contention of defendant that he was deprived of effective assistance of counsel survives his plea of guilty (see People v. Burke, 256 A.D.2d 1244, 682 N.Y.S.2d 650, lv. denied 93 N.Y.2d 851, 688 N.Y.S.2d 498, 710 N.E.2d 1097), we conclude that his contention lacks merit (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: