Opinion
06-10-2016
The PEOPLE of the State of New York, Respondent, v. Chad M. JOHNSTON, Defendant–Appellant.
Norman P. Effman, Public Defender, Warsaw, for Defendant–Appellant. Donald G. O'Geen, District Attorney, Warsaw (Vincent A. Hemming of Counsel), for Respondent.
Appeal from a judgment of the Wyoming County Court (Michael M. Mohun, J.), rendered April 24, 2014. The judgment convicted defendant, upon his plea of guilty, of attempted assault on a peace officer, police officer, fireman or emergency medical services professional.
Norman P. Effman, Public Defender, Warsaw, for Defendant–Appellant.
Donald G. O'Geen, District Attorney, Warsaw (Vincent A. Hemming of Counsel), for Respondent.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of attempted assault on a peace officer, police officer, fireman or emergency medical services professional (Penal Law §§ 110.00, 120.08 ), defendant contends that he was denied due process at sentencing when County Court imposed a sentence based on defendant's postplea arrest without determining that the information upon which it was basing the sentence was reliable and accurate. As a preliminary matter, we note that defendant's contention is not encompassed by the waiver of the right to appeal (see People v. Kolata, 119 A.D.3d 1376, 1377, 989 N.Y.S.2d 223 ; see generally People v. Peck, 90 A.D.3d 1500, 1501, 936 N.Y.S.2d 797 ). However, defendant failed to preserve his contention for our review because he “failed to object to the sufficiency of the court's inquiry or to request a hearing, and he did not move to withdraw his plea on that ground” (People v. Hassett, 119 A.D.3d 1443, 1444, 988 N.Y.S.2d 831, lv. denied 24 N.Y.3d 961, 996 N.Y.S.2d 220, 20 N.E.3d 1000 ). 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] ). It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
CENTRA, J.P., PERADOTTO, CARNI, CURRAN, and TROUTMAN, JJ., concur.