The People of the State of New York, Respondent, v Joshua Kiefer, Appellant.
110490
Appellate Division, Third Department
June 24, 2021
2021 NY Slip Op 04058
Published by
Decided and Entered: June 24, 2021
Calendar Date: June 3, 2021
Before: Garry, P.J., Egan Jr., Aarons, Pritzker and Reynolds Fitzgerald, JJ.
Lindsay H. Kaplan, Kingston, for appellant.
Meagan K. Galligan, District Attorney, Monticello (Kristin L. Hackett of counsel), for respondent.
Aarons, J.
Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered May 23, 2018, convicting defendant upon his plea of guilty of the crimes of burglary in the third degree and criminal mischief in the third degree.
Defendant was arrested on a charge of burglary in the second degree and, at an appearance on July 29, 2015, County Court released him to a pretrial release program on the condition that he participate in an inpatient treatment program. Over the next year, defendant progressed in inpatient treatment, was transferred to a new facility, left that program and, in
Defendant was subsequently arrested after he reportedly tested positive for drugs not prescribed to him and left inpatient treatment. At sentencing, the People argued that, by leaving the treatment program, defendant had violated the terms of his participation in treatment and County Court‘s warnings and directives to comply with the conditions of his pretrial release program. As a result, the People increased their sentencing recommendation, advocating for consecutive sentences of 2 1/3 to 7 years for the burglary conviction and 1 to 3 years for the criminal mischief conviction. The court, finding that defendant had committed a “serious Parker warnings violation,” imposed concurrent sentences of 2 1/3 to 7 years on the burglary conviction and 1 1/3 to 4 years on the criminal mischief conviction. Defendant appeals.
Defendant argues that County Court erred in imposing what he characterizes as an “enhanced” sentence without affording him an opportunity to withdraw his guilty plea, on the ground that he was never advised that failure to remain in the treatment program could subject him to a greater sentence.1 “Although a sentencing court may not impose an enhanced sentence unless it has informed the defendant of specific conditions that the defendant must abide by or risk such enhancement, or give the defendant an opportunity to withdraw his or her plea before the enhanced sentence is imposed” (People v Anderson, 177 AD3d 1031, 1032 [2019] [internal quotation marks, brackets and citations omitted]), the record reflects that the sentence imposed here was not enhanced as there was no agreed-upon sentence. To that end, although the People reserved the right to advocate for a sentence up to a specified
To the extent that defendant argues that County Court erred in finding that he violated his release conditions or Parker warnings, this claim is not preserved for our review given his failure to raise any objection thereto before that court (see
Garry, P.J., Egan Jr., Pritzker and Reynolds Fitzgerald, JJ., concur.
ORDERED that the judgment is affirmed.