People v. Mills , 149 A.D.3d 559 ( 2017 )

People v Mills (2017 NY Slip Op 02953)

People v Mills

2017 NY Slip Op 02953

Decided on April 18, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 18, 2017
Friedman, J.P., Renwick, Moskowitz, Feinman, Kapnick, JJ.

3771 1240/14

[*1]The People of the State of New York, Respondent,

v

Damien Mills, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered September 30, 2014, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fourth degree, and sentencing him to a term of five years' probation, unanimously affirmed.

Defendant's challenge to the imposition of an enhanced sentence is unpreserved, and was expressly waived, when he declined the court's offer to conduct a hearing on the issue of whether defendant violated a term of the plea agreement (see People v Livingston, 96 AD3d 688 [1st Dept 2012], lv denied 19 NY3d 1027 [2012]), and we decline to review this issue in the interest of justice. As an alternative holding, the record supports the court's finding that defendant was untruthful with the Department of Probation about the underlying facts of the crime to which he pleaded guilty, thus violating the explicit condition of the plea agreement requiring him to truthfully discuss the facts of his crime during the presentence interview (see id.).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 18, 2017

CLERK