Opinion
11-18-2016
The PEOPLE of the State of New York, Respondent, v. Shannon B. MURCIN, Defendant–Appellant.
Norman P. Effman, Public Defender, Warsaw (Gregory A. Kilburn of Counsel), for defendant-appellant. Donald G. O'Geen, District Attorney, Warsaw (Vincent A. Hemming of Counsel), for respondent.
Appeal from a judgment of the Wyoming County Court (Michael M. Mohun, J.), rendered December 4, 2014. The judgment convicted defendant, upon his plea of guilty, of driving while ability impaired by drugs.
Norman P. Effman, Public Defender, Warsaw (Gregory A. Kilburn of Counsel), for defendant-appellant.
Donald G. O'Geen, District Attorney, Warsaw (Vincent A. Hemming of Counsel), for respondent.
MEMORANDUM:On appeal from a judgment convicting him upon his plea of guilty of driving while ability impaired by drugs as a class E felony (Vehicle and Traffic Law §§ 1192[4] ; 1193[1][c][i][A] ), defendant contends that his plea was not knowing, voluntary, and intelligent because the no-arrest condition of the plea agreement was ambiguous, and that County Court should have conducted a hearing pursuant to People v. Outley, 80 N.Y.2d 702, 594 N.Y.S.2d 683, 610 N.E.2d 356 before imposing an enhanced sentence based on his violation of that condition. Inasmuch as defendant conceded that his postplea arrests violated the plea agreement, withdrew his motion seeking withdrawal of his plea, and did not move to vacate the judgment of conviction, his contentions are not preserved for our review (see People v. Lorenz, 120 A.D.3d 1528, 1529, 992 N.Y.S.2d 653, lv. denied 24 N.Y.3d 1045, 998 N.Y.S.2d 315, 23 N.E.3d 158 ; see also People v. Hassett, 119 A.D.3d 1443, 1444, 988 N.Y.S.2d 831, lv. denied 24 N.Y.3d 961, 996 N.Y.S.2d 220, 20 N.E.3d 1000 ; People v. Bouwens, 90 A.D.3d 1557, 1558, 934 N.Y.S.2d 905, lv. denied 18 N.Y.3d 955, 944 N.Y.S.2d 484, 967 N.E.2d 709 ). 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] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
WHALEN, P.J., SMITH, DeJOSEPH, NEMOYER, and TROUTMAN, JJ., concur.