Opinion
05-05-2017
The PEOPLE of the State of New York, Respondent, v. Alex S. DUMBLETON, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Gary M. Phillips of Counsel), for defendant-appellant. Lawrence Friedman, District Attorney, Batavia (Shirley A. Gorman of Counsel), for respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Gary M. Phillips of Counsel), for defendant-appellant.
Lawrence Friedman, District Attorney, Batavia (Shirley A. Gorman of Counsel), for respondent.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of criminal contempt in the first degree (Penal Law § 215.51[b][v] ), defendant contends that County Court erred in enhancing his sentence based on a violation of the plea agreement without first conducting a hearing pursuant to People v. Outley, 80 N.Y.2d 702, 594 N.Y.S.2d 683, 610 N.E.2d 356. Although defendant's contention survives his valid waiver of the right to appeal (see People v. Scott, 101 A.D.3d 1773, 1773, 957 N.Y.S.2d 554, lv. denied 21 N.Y.3d 1019, 971 N.Y.S.2d 502, 994 N.E.2d 398 ), defendant did not preserve that contention for our review inasmuch as "he failed to object to the alleged enhanced sentence and did not move to withdraw his plea or vacate the judgment of conviction on that ground" (People v. Epps, 109 A.D.3d 1104, 1105, 971 N.Y.S.2d 708 ; see People v. Mills, 90 A.D.3d 1518, 1518, 934 N.Y.S.2d 890, lv. denied 18 N.Y.3d 960, 944 N.Y.S.2d 489, 967 N.E.2d 714 ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
WHALEN, P.J., SMITH, CENTRA, PERADOTTO, and SCUDDER, JJ., concur.