People v. Walker

Apr 30, 2015
106266
Versions:127 A.D.3d 1506
6 N.Y.S.3d 328
2015 NY Slip Op 03580

Defendant was convicted upon his guilty plea of possessing a sexual performance by a child and, at the time of the plea, County Court (Bruhn, J.) admonished defendant that it would not be bound by the sentencing agreement if he “commit[ted] any new crimes” or was “arrested again for any reason.” He allegedly violated the admonishments and received an enhanced sentence of 1⅓ to 4 years in prison. Upon appeal, we vacated the sentence and remitted the matter so that County Court could conduct an inquiry into the scope of the admonishments “and whether defendant was entitled to a hearing to establish any violation of” them (101 AD3d 1350, 1351 [2012]). County Court (Williams, J.) conducted a hearing and determined that defendant had indeed violated the admonishments. As such, the court resentenced defendant to a prison term of 1⅓ to 4 years. Defendant now appeals.

We affirm. Inasmuch as defendant has served the enhanced sentence in full, his contention that County Court improperly imposed it is academic (see People v Nicholson, 31 AD3d 468, 469 [2006], lv denied 7 NY3d 850 [2006]). In any event, our review of the hearing transcript reveals that County Court complied with the mandates set out in People v Outley (80 NY2d 702, 713 [1993]), and we find no basis to disturb the determination that defendant violated the admonishments. Defendant further asserts that the admonishments were not a proper part of his guilty plea. That argument, to the extent that it may properly be advanced upon this appeal from a resentence (cf. CPL 450.30), is unpreserved because defendant failed to advance it before County Court (see People v Radek, 202 AD2d 847, 848-849 [1994], lv denied 83 NY2d 914 [1994]).

Peters, P.J., Lahtinen and Devine, JJ., concur. Ordered that the judgment is affirmed.