| People v Fisher |
| 2024 NY Slip Op 00701 [224 AD3d 1345] |
| February 9, 2024 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| The People of the State of New York,
Respondent, v Andrew S. Fisher, Appellant. |
Rosemarie Richards, Gilbertsville, for defendant-appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), for respondent.
Appeal from a judgment of the Steuben County Court (Patrick F. McAllister, A.J.), rendered December 5, 2022. The judgment convicted defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted criminal possession of a controlled substance in the fourth degree (Penal Law §§ 110.00, 220.09 [2]). Defendant contends that County Court erred in imposing an enhanced sentence without holding a hearing or otherwise making a sufficient inquiry regarding his alleged violation of the conditions of the plea agreement. That contention is not preserved for our review inasmuch as defendant " 'failed to request such a hearing and did not move to withdraw his plea on that ground' " (People v Scott, 200 AD3d 1729, 1730 [4th Dept 2021]). In any event, the contention lacks merit. Under the circumstances, the court was not required to conduct a hearing, and it provided "[b]oth defendant and his counsel . . . ample opportunity to refute the court's assertions that defendant had violated the plea terms" (People v Albergotti, 17 NY3d 748, 750 [2011]; see generally People v Semple, 23 AD3d 1058, 1059-1060 [4th Dept 2005], lv denied 6 NY3d 852 [2006]), specifically by his failure to appear at sentencing and failure to report to probation as directed by the court (see People v Baker, 204 AD3d 1471, 1472 [4th Dept 2022], lv denied 38 NY3d 1069 [2022]; People v Winship, 26 AD3d 768, 768-769 [4th Dept 2006], lv denied 6 NY3d 899 [2006]; see also Albergotti, 17 NY3d at 749-750). Present—Whalen, P.J., Bannister, Greenwood and Keane, JJ.