Opinion
2015-01-2
The PEOPLE of the State of New York, Respondent, v. Hudson VIELE, Jr., Defendant–Appellant.
Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of reckless endangerment in the second degree (Penal Law § 120.20) and endangering the welfare of a child (§ 260.10[1] ). Pursuant to the plea agreement, County Court indicated that it was “inclined” to sentence defendant to a term of probation for each count but, at sentencing, imposed a period of imprisonment instead. Defendant contends that the court erred in imposing an “enhanced sentence” inasmuch as he abided by the conditions required for the imposition of probation, which the parties and the court had agreed upon at the time of the plea. Defendant also contends that, instead of imposing an “enhanced sentence,” the court should have afforded him an opportunity to withdraw his plea. “Even assuming, arguendo, that the statement of the court that it was ‘inclined’ to sentence defendant to a period of probation [on each count] constituted a commitment to such sentence, we conclude that defendant failed to preserve his contention[s] [concerning the alleged enhanced sentence] for our review because he neither objected to the alleged enhanced sentence nor moved to withdraw his plea” (People v. Webb, 299 A.D.2d 955, 955, 750 N.Y.S.2d 420, lv. denied99 N.Y.2d 565, 754 N.Y.S.2d 218, 784 N.E.2d 91; see People v. Parks, 309 A.D.2d 1172, 1173, 765 N.Y.S.2d 292, lv. denied1 N.Y.3d 577, 775 N.Y.S.2d 793, 807 N.E.2d 906). We decline to exercise our power to review defendant's contentions as a matter of discretion in the interest of justice ( seeCPL 470.15[3][c] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.