Opinion
646 KA 18–00521
06-07-2019
The PEOPLE of the State of New York, Respondent, v. Brian E. SCHMIEGE, Defendant–Appellant.
ROBERT M. GRAFF, LOCKPORT, FOR DEFENDANT–APPELLANT. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
ROBERT M. GRAFF, LOCKPORT, FOR DEFENDANT–APPELLANT.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.Memorandum: Defendant appeals from a judgment revoking the sentence of probation previously imposed upon his conviction of burglary in the third degree ( Penal Law § 140.20 ) and imposing an indeterminate term of incarceration of 2 ? to 7 years. Defendant failed to preserve for our review his challenge to the voluntariness of his admission to the violation of probation because he "did not move on that ground either to withdraw his admission ... or to vacate the judgment revoking his sentence of probation" ( People v. Spangenberg , 118 A.D.3d 1444, 1444, 987 N.Y.S.2d 782 [4th Dept. 2014], lv denied 24 N.Y.3d 965, 996 N.Y.S.2d 224, 20 N.E.3d 1004 [2014] ; see People v. Williams , 166 A.D.3d 1596, 1597, 85 N.Y.S.3d 924 [4th Dept. 2018], lv. denied 32 N.Y.3d 1211 [2019]). The rare exception to the preservation rule does not apply here because defendant said nothing during the admission colloquy that cast "significant doubt upon [his] guilt or otherwise call[ed] into question the voluntariness of the [admission]" ( People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; see Williams , 166 A.D.3d at 1597, 85 N.Y.S.3d 924 ). Contrary to defendant's further contention, the sentence is not unduly harsh or severe.