| People v Dietz |
| 2009 NY Slip Op 06961 [66 AD3d 1400] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James D.Dietz, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered March 3,2008. The judgment convicted defendant, upon his plea of guilty, of attempted criminal sexualact in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, ofattempted criminal sexual act in the first degree (Penal Law §§ 110.00, 130.50 [3]),defendant contends that County Court erred in imposing the agreed-upon sentence rather than areduced sentence, based on his alleged violation of the terms and conditions of the pleaagreement. Although we agree with defendant that his contention survives his waiver of the rightto appeal (see People v Ibrahim, 48AD3d 1095 [2008]), defendant did not object at sentencing or move to withdraw his pleaand thus failed to preserve his contention for our review (see CPL 470.05 [2]). In anyevent, defendant's contention is without merit. The court stated during the plea proceeding that itwould "consider the possibility" of a reduced sentence if defendant admitted his responsibilityand was truthful with the Probation Department. The record establishes, however, that defendantdid not accept responsibility for the crime inasmuch as, after pleading guilty to having oral sexwith a child under the age of 11, he stated at sentencing and during an interview with theProbation Department that he did not have sex with the victim until she was 14 or 15 years old.Thus, defendant did not admit his responsibility for his actions (see People v Hicks, 98NY2d 185, 189 [2002]). Present—Scudder, P.J., Martoche, Peradotto, Carni and Gorski,JJ.