JOHNSTON, CHAD M., PEOPLE v

Appellate Division of the Supreme Court of New York

JOHNSTON, CHAD M., PEOPLE v

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 10, 2016

DocketKA 14-00931

StatusPublished

This text of JOHNSTON, CHAD M., PEOPLE v (JOHNSTON, CHAD M., PEOPLE v) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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JOHNSTON, CHAD M., PEOPLE v, (N.Y. Ct. App. 2016).

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Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

386 KA 14-00931 PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

CHAD M. JOHNSTON, DEFENDANT-APPELLANT.

NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW, FOR DEFENDANT-APPELLANT.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Wyoming County Court (Michael M. Mohun, J.), rendered April 24, 2014. The judgment convicted defendant, upon his plea of guilty, of attempted assault on a peace officer, police officer, fireman or emergency medical services professional.

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 of attempted assault on a peace officer, police officer, fireman or emergency medical services professional (Penal Law §§ 110.00, 120.08), defendant contends that he was denied due process at sentencing when County Court imposed a sentence based on defendant’s postplea arrest without determining that the information upon which it was basing the sentence was reliable and accurate. As a preliminary matter, we note that defendant’s contention is not encompassed by the waiver of the right to appeal (see People v Kolata, 119 AD3d 1376, 1377; see generally People v Peck, 90 AD3d 1500, 1501). However, defendant failed to preserve his contention for our review because he “failed to object to the sufficiency of the court’s inquiry or to request a hearing, and he did not move to withdraw his plea on that ground” (People v Hassett, 119 AD3d 1443, 1444, lv denied 24 NY3d 961). We decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).

Entered: June 10, 2016 Frances E. Cafarell Clerk of the Court

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SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

386 KA 14-00931 PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

CHAD M. JOHNSTON, DEFENDANT-APPELLANT.

NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW, FOR DEFENDANT-APPELLANT.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Wyoming County Court (Michael M. Mohun, J.), rendered April 24, 2014. The judgment convicted defendant, upon his plea of guilty, of attempted assault on a peace officer, police officer, fireman or emergency medical services professional.

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 of attempted assault on a peace officer, police officer, fireman or emergency medical services professional (Penal Law §§ 110.00, 120.08), defendant contends that he was denied due process at sentencing when County Court imposed a sentence based on defendant’s postplea arrest without determining that the information upon which it was basing the sentence was reliable and accurate. As a preliminary matter, we note that defendant’s contention is not encompassed by the waiver of the right to appeal (see People v Kolata, 119 AD3d 1376, 1377; see generally People v Peck, 90 AD3d 1500, 1501). However, defendant failed to preserve his contention for our review because he “failed to object to the sufficiency of the court’s inquiry or to request a hearing, and he did not move to withdraw his plea on that ground” (People v Hassett, 119 AD3d 1443, 1444, lv denied 24 NY3d 961). We decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).

Entered: June 10, 2016 Frances E. Cafarell Clerk of the Court

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