Opinion
683 KA 19-01306
07-17-2020
The PEOPLE of the State of New York, Respondent, v. Demetrius M. BAXTER, Defendant-Appellant.
NICHOLAS B. ROBINSON, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT-APPELLANT. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
NICHOLAS B. ROBINSON, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT-APPELLANT.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted robbery in the second degree ( Penal Law §§ 110.00, 160.10[2][b] ). Preliminarily, we agree with defendant that his waiver of the right to appeal is invalid (see People v. Cole , 181 A.D.3d 1329, 1330, 121 N.Y.S.3d 766 [4th Dept. 2020] ). Nevertheless, defendant's contention that County Court failed to conduct a sufficient inquiry before terminating his interim probation is unpreserved for appellate review (see People v. Alsaaidi , 173 A.D.3d 1836, 1837, 104 N.Y.S.3d 464 [4th Dept. 2019], lv denied 35 N.Y.3d 940, 124 N.Y.S.3d 278, 147 N.E.3d 548 [2020] ; People v. Wissert , 85 A.D.3d 1633, 1633-1634, 924 N.Y.S.2d 909 [4th Dept. 2011], lv denied 17 N.Y.3d 956, 936 N.Y.S.2d 82, 959 N.E.2d 1031 [2011] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ). Contrary to defendant's further contention, the sentence is not unduly harsh or severe.