People v. Evans

302 A.D.2d 893, 753 N.Y.S.2d 791, 2003 N.Y. App. Div. LEXIS 1017

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2003
• Status: Published

Opinion

Appeal from a judgment of Erie County Court (DiTullio, J.), entered November 29, 2001, convicting defendant upon her plea of guilty of criminal possession of a controlled substance in the fifth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]). Defendant contends that County Court erred in imposing an enhanced sentence based on her failure to appear at the initial sentencing proceeding and based on her statements to a probation officer concerning her continued sale of controlled substances. Contrary to the People’s contention, the waiver by defendant of the right to appeal does not encompass that part of her contention concerning the enhancement of the sentence for failure to appear at the initial sentencing proceeding because her appearance at sentencing was not imposed as a condition of the plea (see People v Hendricks, 270 AD2d 944, 944-945; see also People v Covell, 276 AD2d 824, 826). Because defendant failed to object to the enhanced sentence or to move to withdraw the plea or vacate the judgment of conviction, however, her contention is not preserved for our review (see People v Perkins, 291 AD2d 925, 926, lv denied 98 NY2d 654; People v Perry, 252 AD2d 990, lv denied 92 NY2d 929). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Present — Pigott, Jr., P.J., Pine, Hurlbutt, Gorski and Lawton, JJ.