People v Walker

People v Walker 2015 NY Slip Op 03580 Decided on April 30, 2015 Appellate Division, Third 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 and Entered: April 30, 2015
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[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

WILLIAM WALKER, Appellant.

Calendar Date: March 26, 2015
Before: Peters, P.J., Lahtinen, Rose and Devine, JJ.

Theodore J. Stein, Woodstock, for appellant.

D. Holley Carnright, District Attorney, Kingston (Danielle Scarduzio of counsel), for respondent.

Rose, J.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered August 22, 2013, which resentenced defendant upon his plea of guilty of the crime of possessing a sexual performance by a child.

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 1 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 1 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 [*2]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.