Opinion
323 KA 20-00139
03-19-2021
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT. KENNETH C. SHELTON, SR., DEFENDANT-APPELLANT PRO SE. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.
KENNETH C. SHELTON, SR., DEFENDANT-APPELLANT PRO SE.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, 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 his guilty plea, of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16 [1] ) and criminal sale of a controlled substance in the third degree (§ 220.39 [1]). Defendant contends in his main and pro se supplemental briefs that County Court erred in imposing an enhanced sentence based upon his failure to appear at sentencing because the court did not sufficiently warn him about the consequences of his failure to appear. Defendant, however, failed to preserve his contention for our review inasmuch as he did not object to the enhanced sentence or move to withdraw his guilty plea or to vacate the judgment of conviction (see People v. Couturier , 177 A.D.3d 1320, 1320-1321, 110 N.Y.S.3d 355 [4th Dept. 2019], lv denied 34 N.Y.3d 1127, 118 N.Y.S.3d 539, 141 N.E.3d 495 [2020] ; People v. Hernandez , 161 A.D.3d 1548, 1549, 73 N.Y.S.3d 921 [4th Dept. 2018] ), and contrary to defendant's further contention in his main brief, the court's alleged failure does not constitute a mode of proceedings error for which preservation is not required. We decline to exercise our power to review the contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).
Contrary to defendant's contention in his main brief, the enhanced sentence is not unduly harsh or severe. We have reviewed the remaining contentions of defendant raised in his pro se supplemental brief and conclude that they are without merit.