Opinion
346 KA 15–00101
03-16-2018
The PEOPLE of the State of New York, Respondent, v. James FOX, Defendant–appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (HEATHER PARKER HINES OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (HEATHER PARKER HINES OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum: Defendant appeals from a judgment revoking the sentence of probation previously imposed upon his conviction of failure to register and/or verify as a sex offender ( Correction Law §§ 168–f [4 ]; 168–t) and sentencing him to a term of incarceration based on his admission that he violated three terms and conditions of probation. Defendant contends that his admission to having violated probation by failing to participate in sex offender treatment should be vacated because his refusal to admit the underlying sex offense was not a refusal to participate in sex offender treatment. That contention is unpreserved for our review because defendant "failed to move to withdraw his admission or to vacate the judgment revoking his sentence of probation on that ground" ( People v. Obbagy, 56 A.D.3d 1223, 1224, 867 N.Y.S.2d 803 [4th Dept. 2008], lv denied 11 N.Y.3d 928, 874 N.Y.S.2d 13, 902 N.E.2d 447 [2009] ; see People v. Hamdy, 46 A.D.3d 1383, 1383, 847 N.Y.S.2d 882 [4th Dept. 2007], lv denied 10 N.Y.3d 765, 854 N.Y.S.2d 327, 883 N.E.2d 1262 [2008] ), and we decline to exercise our power to address that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). We note in any event that defendant admitted to two other violations, which provide a sufficient basis for finding a violation of probation (see Hamdy, 46 A.D.3d at 1383, 847 N.Y.S.2d 882 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.