Opinion
388 KA 18-01622
04-28-2023
The PEOPLE of the State of New York, Respondent, v. Clement G. HILL, Defendant-Appellant.
MICHAEL PULVER, NORTH SYRACUSE, FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
MICHAEL PULVER, NORTH SYRACUSE, FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, MONTOUR, OGDEN, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of five counts of promoting a sexual performance by a child ( Penal Law § 263.15 ), defendant contends that his plea was involuntarily entered because Supreme Court failed to inform him during the colloquy that his attorney was correct in advising him that the period of postrelease supervision (PRS) imposed by the court here would merge with the period of PRS previously imposed on a prior felony conviction. As defendant correctly concedes, his contention is unpreserved for our review because he did not move to withdraw his plea or vacate the judgment of conviction (see People v. Brown , 162 A.D.3d 1568, 1568, 78 N.Y.S.3d 848 [4th Dept. 2018], affd 32 N.Y.3d 935, 84 N.Y.S.3d 862, 109 N.E.3d 1162 [2018] ; People v. Dempsey , 197 A.D.3d 1020, 1021, 150 N.Y.S.3d 674 [4th Dept. 2021], lv denied 37 N.Y.3d 1160, 160 N.Y.S.3d 692, 181 N.E.3d 1120 [2022] ). We decline to exercise our power to review defendant's unpreserved contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ), particularly in view of the fact that the periods of PRS did in fact merge as defendant was led to believe by his attorney.