Opinion
483 16–00155
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Jason A. BARNHART, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL S. DEAL OF COUNSEL), FOR DEFENDANT–APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL S. DEAL OF COUNSEL), FOR DEFENDANT–APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
On appeal from a judgment that, upon his admission that he violated the terms and conditions of probation, revoked the sentence of probation imposed upon his conviction of criminal sale of a controlled substance in the fourth degree ( Penal Law § 220.34[1] ), and sentenced him to a term of imprisonment, defendant contends that County Court erred in imposing an enhanced sentence based on his conduct after his admission and before sentencing. Defendant's contention is not preserved for our review because he "neither objected to the enhanced sentence[ ] nor moved to withdraw [his admission] on that ground" ( People v. Zelter [appeal No. 1], 6 A.D.3d 1103, 1103, 775 N.Y.S.2d 633 [4th Dept. 2004], lv denied 3 N.Y.3d 683, 784 N.Y.S.2d 22, 817 N.E.2d 840 [2004] ; see People v. Dumbleton, 150 A.D.3d 1688, 1688–1689, 51 N.Y.S.3d 918 [4th Dept. 2017], lv denied 29 N.Y.3d 1091, 63 N.Y.S.3d 7, 85 N.E.3d 102 [2017] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).
Contrary to defendant's remaining contention, the enhanced sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.