Opinion
2015-03-27
The PEOPLE of the State of New York, Respondent, v. Robert J. EPPOLITO, Defendant–Appellant. (Appeal No. 1.).
Anna Jost, Tonawanda, for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for respondent.
Anna Jost, Tonawanda, for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for respondent.
PRESENT: SMITH, J.P., VALENTINO, WHALEN, and DeJOSEPH, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment that, upon his admission to violating conditions of probation, revoked the sentence of probation imposed on his conviction of attempted aggravated criminal contempt (Penal Law §§ 110.00, 215.52[1] ) and sentenced him to a term of imprisonment. In appeal No. 2, defendant appeals from a judgment convicting him, upon his plea of guilty, of assault in the second degree (§ 120.05 [2] ). Defendant concedes in both appeals that he failed to preserve for our review his contention that the admission and guilty plea, respectively, were not knowing, voluntary or intelligent “inasmuch as [he] failed to move to withdraw [his] admission [or plea] on that ground” or to vacate either judgment (People v. Shaw, 118 A.D.3d 1461, 1461, 988 N.Y.S.2d 372, lv. denied24 N.Y.3d 1005, 997 N.Y.S.2d 123, 21 N.E.3d 575; see People v. Russell, 55 A.D.3d 1314, 1314–1315, 864 N.Y.S.2d 587, lv. denied11 N.Y.3d 930, 874 N.Y.S.2d 15, 902 N.E.2d 449; see generally People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5). These cases do not fall within the narrow exception to the preservation requirement set forth in Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5. Contrary to defendant's contention in appeal No. 2, he was properly sentenced as a second felony offender based on his conviction of attempted aggravated criminal contempt as a predicate felony ( seePenal Law § 70.06[1][b][ii]; People v. Newton, 91 A.D.3d 1281, 1281, 937 N.Y.S.2d 646, lv. denied19 N.Y.3d 965, 950 N.Y.S.2d 117, 973 N.E.2d 215). Finally, we conclude that the sentences in both appeals are not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.