Opinion
867 KA 20-01414
10-08-2021
The PEOPLE of the State of New York, Respondent, v. Zachery BISHOP, Defendant-Appellant. (Appeal No. 1.)
THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal Nos. 1 and 2, defendant appeals from judgments convicting him upon his pleas of guilty during a single plea proceeding of, respectively, robbery in the second degree ( Penal Law § 160.10 [1] ) and robbery in the first degree ( § 160.15 [3] ). Defendant contends in both appeals that County Court erred in imposing enhanced sentences because the court's Outley warning was not part of the plea agreement, the court failed to sufficiently warn him of the consequences of violating the subject conditions and, in any event, he did not violate the conditions as articulated by the court. Defendant, however, failed to preserve those contentions for our review inasmuch as he did not object to the enhanced sentences or move to withdraw his guilty pleas or to vacate the judgments of conviction (see People v. Shelton , 192 A.D.3d 1506, 1507, 140 N.Y.S.3d 808 [4th Dept. 2021], lv denied 37 N.Y.3d 960, 147 N.Y.S.3d 546, 170 N.E.3d 420 [2021] ; People v. Coker , 133 A.D.3d 1218, 1218, 20 N.Y.S.3d 270 [4th Dept. 2015], lv denied 27 N.Y.3d 995, 38 N.Y.S.3d 105, 59 N.E.3d 1217 [2016] ). We decline to exercise our power to review defendant's contentions as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).
Defendant failed to preserve for our review his contention that the court violated CPL 380.50 by not asking him if he wished to make a statement at sentencing (see People v. Green , 54 N.Y.2d 878, 880, 444 N.Y.S.2d 908, 429 N.E.2d 415 [1981] ). In any event, the court substantially complied with CPL 380.50 by asking defense counsel if he wished to be heard prior to the imposition of sentence (see People v. Desius , 188 A.D.3d 1626, 1629, 135 N.Y.S.3d 214 [4th Dept. 2020], lv denied 36 N.Y.3d 1096, 1094, 144 N.Y.S.3d 132, 151, 167 N.E.3d 1267, 1286 [2021]; see generally People v. McClain , 35 N.Y.2d 483, 491, 364 N.Y.S.2d 143, 323 N.E.2d 685 [1974], cert denied 423 U.S. 852, 96 S.Ct. 98, 46 L.Ed.2d 76 [1975] ). Finally, the enhanced sentences are not unduly harsh or severe.