Opinion
11-10-2016
The PEOPLE of the State of New York, Respondent, v. Brian L. SMITH, also Known as Brian Lee Smith, Defendant–Appellant. (Appeal No. 1.).
Michael Steinberg, Rochester, for defendant-appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for respondent.
Appeal from a judgment of the Supreme Court, Genesee County (Eric R. Adams, A.J.), rendered June 25, 2014. The judgment convicted defendant, upon his plea of guilty, of criminal contempt in the first degree.
Michael Steinberg, Rochester, for defendant-appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for respondent.
MEMORANDUM:In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of criminal contempt in the first degree (Penal Law § 215.51[c] ) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of aggravated family offense (§ 240.75[1] ). The two matters were covered by a single plea colloquy. Defendant contends in each appeal that Supreme Court erred in enhancing his sentence without an adequate factual basis (see generally People v. Outley, 80 N.Y.2d 702, 712–713, 594 N.Y.S.2d 683, 610 N.E.2d 356 ). Defendant failed to preserve that contention for our review inasmuch as “he failed to object to the alleged enhanced sentence[s] and did not move to withdraw his plea or to vacate the judgment[s] of conviction on that ground” (People v. Laurendi, 126 A.D.3d 1401, 1402, 4 N.Y.S.3d 460, lv. denied 26 N.Y.3d 1009, 20 N.Y.S.3d 550, 42 N.E.3d 220 [internal quotation marks omitted]; see People v. Epps, 109 A.D.3d 1104, 1105, 971 N.Y.S.2d 708 ). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).
Defendant further contends in each appeal that he was denied effective assistance of counsel at sentencing. To the extent that such contention survives his guilty plea, we conclude that it lacks merit (see People v. LaCroce, 83 A.D.3d 1388, 1388, 919 N.Y.S.2d 728, lv. denied 17 N.Y.3d 807, 929 N.Y.S.2d 567, 953 N.E.2d 805 ). Defendant “receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” (People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
CENTRA, J.P., PERADOTTO, DeJOSEPH, NEMOYER, and CURRAN, JJ., concur.