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People v Fisher, 2024 NY Slip Op 00701 [224 AD3d 1345]

February 9, 2024

Appellate Division, Fourth Department

[*1]

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..