| People v Epps |
| 2013 NY Slip Op 06119 [109 AD3d 1104] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BillieEpps, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski,A.J.), rendered July 23, 2010. The judgment convicted defendant, upon his plea of guilty,of sexual abuse in the first degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of two counts of sexual abuse in the first degree (Penal Law § 130.65 [3]).Defendant contends that Supreme Court erred in enhancing his sentence withoutaffording him the opportunity to withdraw his plea (see People v Selikoff, 35NY2d 227, 241 [1974], cert denied 419 US 1122 [1975]) and that his waiver ofthe right to appeal does not foreclose him from raising that contention. We agree withdefendant that the waiver of the right to appeal does not encompass his contentionregarding the alleged enhanced sentence (see People v Joyner, 19 AD3d 1129, 1129 [2005]; People v Lighthall, 6 AD3d1170, 1171 [2004], lv denied 3 NY3d 643 [2004]). Defendant, however,failed to preserve that contention for our review because he failed to object to the allegedenhanced sentence and did not move to withdraw his plea or to vacate the judgment ofconviction on that ground (see Joyner, 19 AD3d at 1129; People v Webb,299 AD2d 955, 955 [2002], lv denied 99 NY2d 565 [2002]), and we decline toexercise our power to review it as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Present—Scudder, P.J., Peradotto, Carni, Valentino andWhalen, JJ.