KACZMAREK, STEPHEN, PEOPLE v ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1277
KA 15-00993
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, VALENTINO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
STEPHEN KACZMAREK, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
TAHERI & TODORO, PC, WILLIAMSVILLE (BRIAN J. HUTCHISON OF COUNSEL),
FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered December 17, 2014. The judgment convicted
defendant, upon his plea of guilty, of criminal contempt in the second
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed and the matter is remitted to Supreme Court, Erie
County, for proceedings pursuant to CPL 460.50 (5).
Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of criminal contempt in the
second degree (Penal Law § 215.50 [3]). In appeal No. 2, defendant
appeals from a judgment revoking a sentence of probation imposed upon
his conviction of criminal possession of a weapon in the fourth degree
(§ 265.01 [1]) and imposing a sentence of incarceration upon
defendant’s admission that he violated the conditions of his
probation. Defendant’s contention in appeal No. 1 that Supreme Court
erred in enhancing his sentence without affording him the opportunity
to withdraw his plea is not encompassed by his waiver of the right to
appeal (see People v Joyner, 19 AD3d 1129, 1129), but defendant failed
to preserve that contention for our review inasmuch as he failed to
object to the alleged enhanced sentence and did not move to withdraw
his plea or to vacate the judgment of conviction on that ground (see
People v Viele, 124 AD3d 1222, 1223; People v Epps, 109 AD3d 1104,
1105). 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]). Defendant’s challenge to the severity of the
sentence in both appeals is foreclosed by his waiver of the right to
appeal inasmuch as the court advised defendant of the maximum sentence
it could impose before defendant waived his right to appeal (see
People v
-2- 1277
KA 15-00993
Lococo, 92 NY2d 825, 827; cf. People v Mingo, 38 AD3d 1270, 1271).
Entered: December 23, 2015 Frances E. Cafarell
Clerk of the Court