Opinion
718 KA 21-00119
10-07-2022
The PEOPLE of the State of New York, Respondent, v. Tyler A. LIBERATORE, Defendant-Appellant.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment revoking the sentence of probation imposed on his conviction for attempted criminal sale of a controlled substance in the third degree ( Penal Law §§ 110.00, 220.39 [1] ) and sentencing him to a term of incarceration based on his admission that he violated probation by committing acts that constituted a felony. We affirm.
Although defendant initially contends that his waiver of the right to appeal is unenforceable, the record does not reflect that he was asked to waive his right to appeal or that he agreed to do so. In any event, defendant's only substantive contention—that his admission was involuntarily entered—would survive a valid waiver of the right to appeal (see People v. Fairman , 38 A.D.3d 1346, 1347, 832 N.Y.S.2d 703 [4th Dept. 2007], lv denied 9 N.Y.3d 865, 840 N.Y.S.2d 894, 872 N.E.2d 1200 [2007] ).
Defendant's challenge to the voluntariness of his admission is unpreserved for our review because he "did not move on that ground either to withdraw his admission to the violation of probation or to vacate the judgment revoking his sentence of probation" ( People v. Verin , 191 A.D.3d 1245, 1246, 137 N.Y.S.3d 764 [4th Dept. 2021] ; see also People v. Fox , 159 A.D.3d 1435, 1435, 72 N.Y.S.3d 299 [4th Dept. 2018], lv denied 31 N.Y.3d 1116, 81 N.Y.S.3d 376, 106 N.E.3d 759 [2018] ). The narrow exception to the preservation rule recognized in People v Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 (1988) does not apply (see People v. Cruz, 192 A.D.3d 1683, 1683, 141 N.Y.S.3d 404 [4th Dept. 2021], lv denied 37 N.Y.3d 955, 147 N.Y.S.3d 538, 170 N.E.3d 412 [2021] ).