Opinion
493 KA 21-00483
06-30-2023
The PEOPLE of the State of New York, Respondent, v. Richard D. TENNANT, Jr., Defendant-Appellant.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (MICHAEL A. LABELLA OF COUNSEL), FOR RESPONDENT.
PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (MICHAEL A. LABELLA OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of burglary in the second degree ( Penal Law § 140.25 [2] ), defendant contends that his waiver of the right to appeal is invalid and that the enhanced sentence is unduly harsh and severe. Even assuming, arguendo, that defendant's waiver of the right to appeal was not knowingly, voluntarily and intelligently entered (see People v. Terry , 203 A.D.3d 1578, 1578, 161 N.Y.S.3d 905 [4th Dept. 2022], lv denied 38 N.Y.3d 1010, 168 N.Y.S.3d 375, 378, 188 N.E.3d 567, 570 [2022]) or otherwise does not encompass his challenge to the severity of the sentence (see People v. Baker , 204 A.D.3d 1471, 1471, 166 N.Y.S.3d 816 [4th Dept. 2022], lv denied 38 N.Y.3d 1069, 171 N.Y.S.3d 462, 191 N.E.3d 414 [2022] ), we perceive no basis in the record to exercise our power to modify the sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b] ).
Although defendant further contends that County Court erred in imposing an enhanced sentence without conducting a hearing pursuant to People v. Outley , 80 N.Y.2d 702, 594 N.Y.S.2d 683, 610 N.E.2d 356 (1993), defendant failed to preserve that contention for our review (see People v. Peckham , 195 A.D.3d 1437, 1437, 145 N.Y.S.3d 475 [4th Dept. 2021], lv denied 37 N.Y.3d 994, 152 N.Y.S.3d 397, 174 N.E.3d 337 [2021] ). In any event, the record establishes that defendant, who failed to appear for sentencing and was arrested on new felony charges after he had pleaded guilty, admitted in open court that he had violated the conditions of the court's sentence promise, thus obviating the need for a hearing.
We have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.