Opinion
KA 02-01028
November 15, 2002.
Appeal from a judgment of Supreme Court, Erie County (Tills, J.), entered November 7, 2001, convicting defendant upon his plea of guilty of grand larceny in the fourth degree.
THOMAS THEOPHILOS, BUFFALO, FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., HAYES, SCUDDER, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
On appeal from a judgment convicting him upon his plea of guilty of grand larceny in the fourth degree (Penal Law § 155.30), defendant contends that Supreme Court erred in imposing an enhanced sentence without affording 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 constituted a commitment to such sentence, we conclude that defendant failed to preserve his contention for our review because he neither objected to the alleged enhanced sentence nor moved to withdraw his plea ( see People v. Michael S., 273 A.D.2d 804; People v. Luksch, 265 A.D.2d 895, lv denied 94 N.Y.2d 825; People v. Perry, 252 A.D.2d 990, lv denied 92 N.Y.2d 929). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]; Luksch, 265 A.D.2d at 895-896). Contrary to the People's contention, the waiver by defendant of the right to appeal does not encompass his challenge to the severity of the sentence where, as here, the court had not advised him of the potential periods of incarceration that could be imposed before he waived his right to appeal ( see People v. Lococo, 92 N.Y.2d 825, 827; People v. Hidalgo, 91 N.Y.2d 733, 737). We conclude, however, that the sentence imposed is neither unduly harsh nor severe. We have examined defendant's remaining contention and conclude that it lacks merit.