Opinion
1172 KA 18-02197
12-23-2021
The PEOPLE of the State of New York, Respondent, v. Camell OLIVER, Defendant-Appellant. (Appeal No. 1.)
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KATHY E. MANLEY OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KATHY E. MANLEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal Nos. 1 and 2, defendant appeals from two separate judgments convicting him, upon his guilty pleas, of two separate and distinct counts of attempted criminal possession of a controlled substance in the third degree ( Penal Law §§ 110.00, 220.16 [1] ). Defendant contends in both appeals, and the People correctly concede, that the waiver of the right to appeal, which covered both pleas, is invalid (see People v. Thomas , 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ). Although defendant contends that his sentences were improperly enhanced, defendant failed to preserve his contention for our review "inasmuch as he did not object to [County Court's] imposition of the enhanced sentence[s] and did not move to withdraw his plea[s] or vacate the judgment[s] of conviction" ( People v. Moore , 182 A.D.3d 1032, 1032, 120 N.Y.S.3d 919 [4th Dept. 2020] ; see People v. Dumbleton , 150 A.D.3d 1688, 1688, 51 N.Y.S.3d 918 [4th Dept. 2017], lv denied 29 N.Y.3d 1091, 63 N.Y.S.3d 7, 85 N.E.3d 102 [2017] ). Considering that defendant agreed to the enhanced sentences in return for dismissal of a new felony charge that had been lodged against him, we decline to exercise our power to review his contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ). Contrary to defendant's remaining contention, the sentences are not unduly harsh or severe.