JOHNSTON, CHAD M., PEOPLE v

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