Opinion
KA 01-00130
June 13, 2003.
Appeal from a judgment of Genesee County Court (Noonan, J.), entered October 6, 2000, convicting defendant upon his plea of guilty of attempted assault in the second degree.
GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant did not object to the enhancement of his sentence, nor did he move to withdraw his plea of guilty or vacate the judgment of conviction. Defendant therefore failed to preserve for our review his contention that County Court erred in enhancing his sentence based upon his failure to cooperate with the presentence investigation ( see People v. Baxter, 302 A.D.2d 950, 951; People v Copeland, 288 A.D.2d 906, 906-907, lv denied 97 N.Y.2d 703). In any event, we conclude that the court properly enhanced defendant's sentence ( see Baxter, 302 A.D.2d at 951; People v. Perkins, 291 A.D.2d 925, 926, lv denied 98 N.Y.2d 654). The general waiver by defendant of the right to appeal encompasses his challenge to the severity of the enhanced sentence ( see People v. Melendez, 291 A.D.2d 887, lv denied 98 N.Y.2d 639; People v. Colley, 289 A.D.2d 1021, lv denied 98 N.Y.2d 650; see generally People v. Hidalgo, 91 N.Y.2d 733, 737).