PEOPLE v. FAULKNER

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

The PEOPLE of the State of New York, Respondent, v. Gentlemen FAULKNER, Appellant.

Decided: September 25, 2008

Before:  CARDONA, P.J., MERCURE, SPAIN, LAHTINEN and MALONE JR., JJ. Ralph Cherchian, Albany, for appellant. P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), for respondent.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered April 9, 2007, convicting defendant upon his plea of guilty of the crime of assault in the second degree.

Defendant pleaded guilty to a superior court information charging him with assault in the second degree with the understanding that, as long as he complied with the terms of the plea agreement, he would be sentenced to four years in prison and three years of postrelease supervision.   At the time of sentencing, County Court found that defendant had violated the conditions of the plea agreement and, as a result, sentenced him to five years in prison and three years of postrelease supervision.   Defendant now appeals.

 We affirm.   To the extent that defendant contends that County Court's imposition of an enhanced sentence was illegal, although such a claim is not foreclosed by his waiver of the right to appeal (see People v. Baxter, 302 A.D.2d 950, 951, 757 N.Y.S.2d 915 [2003], lv. denied 99 N.Y.2d 652, 760 N.Y.S.2d 116, 790 N.E.2d 290 [2003] ), our review of the record reveals that it is wholly without merit.   Despite having been explicitly advised that he was required to answer the Probation Department's inquiries truthfully and in a manner consistent with that which he told the court during the plea hearing, defendant gave the Probation Department an account of his criminal conduct which conflicted with what he had stated in court.   As such, County Court was free to impose an enhanced sentence (see People v. Hicks, 98 N.Y.2d 185, 189, 746 N.Y.S.2d 441, 774 N.E.2d 205 [2002] ).   As for defendant's assertion that the enhanced sentence was unduly harsh and excessive, his appeal waiver precludes him from making such a challenge where, as here, County Court advised him of the maximum potential sentence for noncompliance with the plea agreement (see People v. Terrell, 41 A.D.3d 1044, 1045, 839 N.Y.S.2d 812 [2007] ).

ORDERED that the judgment is affirmed.

MALONE JR., J.

CARDONA, P.J., MERCURE, SPAIN and LAHTINEN, JJ., concur.

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