People v Benitez

People v Benitez 2015 NY Slip Op 03454 Decided on April 28, 2015 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 28, 2015
Gonzalez, P.J., Mazzarelli, Renwick, Gische, JJ.
14937 3209/11

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

v

Hector Benitez, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Robin Nichinsky of counsel), for appellant.

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

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered April 4, 2012, convicting defendant, upon his plea of guilty, of conspiracy in the second degree, and sentencing him to a term of 1½ to 4½ years, unanimously affirmed.

Defendant made a valid waiver of his right to appeal (see People v Lopez, 6 NY3d 248, 256-257 [2006]). Regardless of whether defendant made a valid waiver of his right to appeal, and regardless of whether the waiver applied to postplea sentencing enhancement issues, defendant's challenge to the court's conclusion that he violated his plea agreement is unavailing. Initially, we note that defendant, who has served his entire sentence including parole, seeks no remedy other than reduction of his conviction to attempted second-degree conspiracy as specific performance of his plea agreement. We find no basis for such a reduction, because, after a thorough inquiry, the court properly concluded that defendant violated the agreement by failing to cooperate with the Probation Department (see People v Valencia, 3 NY3d 714, 715 [2004]). The court's finding was based primarily on its conclusion that defendant's version of events was incredible, and we find no basis to disturb that determination. We have considered and rejected defendant's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 28, 2015

CLERK