People v. Benitez — 127 A.D.3d 620

Majority

p. 620

The People of the State of New York, Respondent, v Hector Benitez, Appellant.

[8 NYS3d 140]—

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 IV2 to 4V2 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

p. 621

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.

Concur — Gonzalez, P.J., Mazzarelli, Renwick and Gische, JJ.

Cases cited

People v. Lopez 6 NY3d 248 N.Y. 2006-02-16 at 256-257 p. 620
People v. Valencia 3 NY3d 714 N.Y. 2004-10-14 at 715 p. 621