Opinion
KA 02-01806
February 7, 2003.
Appeal from a judgment of Monroe County Court (Connell, J.), entered November 5, 2001, convicting defendant upon his plea of guilty of criminal possession of a controlled substance in the third degree.
HOWARD K. BRODER, ROCHESTER, For Defendant-appellant.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (MICHAEL J. NOLAN OF COUNSEL), For Plaintiff-respondent.
PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16). Defendant knowingly, voluntarily and intelligently waived his right to appeal (see People v. Kemp, 94 N.Y.2d 831, 833; People v. Brown, 281 A.D.2d 962, lv denied 96 N.Y.2d 899), and that waiver specifically encompasses his contention that County Court erred in denying that part of his motion seeking suppression of his statement to a police officer (see People v. Williams, 36 N.Y.2d 829, 830, cert denied 423 U.S. 873). Although the waiver of the right to appeal does not encompass the further contention of defendant that the court erred in imposing an enhanced sentence based upon his postplea conduct (see People v. Parker, 271 A.D.2d 63, 68, lv denied 95 N.Y.2d 967), defendant failed to preserve that contention for our review by objecting to the enhanced sentence or by moving to withdraw his plea or to vacate the judgment of conviction (see People v. Perkins, 291 A.D.2d 925, 926, lv denied 98 N.Y.2d 654; People v. Michael S., 273 A.D.2d 804, 804-805; People v. Perry, 252 A.D.2d 990, lv denied 92 N.Y.2d 929). In any event, the court did not abuse its discretion in imposing an enhanced sentence (see People v. Perkins, 291 A.D.2d at 926). The record establishes that defendant violated two conditions communicated to him at the time of his plea, i.e., that he appear at sentencing and that he not be arrested for a crime pending sentencing (see People v. Yu, 204 A.D.2d 129, 129-130, lv denied 84 N.Y.2d 835).