Opinion
324 KA 17–01970
04-24-2020
The PEOPLE of the State of New York, Respondent, v. Keary MOORE, Defendant–appellant.
LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., TROUTMAN, 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 a plea of guilty, of conspiracy in the second degree ( Penal Law § 105.15 ). Defendant contends that Supreme Court lacked the authority to enhance his agreed-upon sentence following defendant's alleged violation of the plea agreement. Although defendant's challenge is not, under the circumstances of this case, precluded by his waiver of the right to appeal (see People v. McDermott , 68 A.D.3d 1453, 1453, 891 N.Y.S.2d 515 [3d Dept. 2009] ; People v. Hastings , 24 A.D.3d 954, 955, 805 N.Y.S.2d 702 [3d Dept. 2005] ), defendant failed to preserve his contention for our review inasmuch as he did not object to the court's imposition of the enhanced sentence and did not move to withdraw his plea or vacate the judgment of conviction (see People v. Laurendi , 126 A.D.3d 1401, 1402, 4 N.Y.S.3d 460 [4th Dept. 2015], lv denied 26 N.Y.3d 1009, 20 N.Y.S.3d 550, 42 N.E.3d 220 [2015] ; People v. Viele, 124 A.D.3d 1222, 1223, 997 N.Y.S.2d 577 [4th Dept. 2015] ; People v. Scott , 101 A.D.3d 1773, 1773–1774, 957 N.Y.S.2d 554 [4th Dept. 2012], lv denied 21 N.Y.3d 1019, 971 N.Y.S.2d 502, 994 N.E.2d 398 [2013] ). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).