VIELE, JR., HUDSON, PEOPLE v ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1072
KA 13-02217
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
HUDSON VIELE, JR., DEFENDANT-APPELLANT.
MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Kenneth F. Case,
J.), rendered December 16, 2013. The judgment convicted defendant,
upon his plea of guilty, of reckless endangerment in the second degree
and endangering the welfare of a child.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of reckless endangerment in the second degree
(Penal Law § 120.20) and endangering the welfare of a child (§ 260.10
[1]). Pursuant to the plea agreement, County Court indicated that it
was “inclined” to sentence defendant to a term of probation for each
count but, at sentencing, imposed a period of imprisonment instead.
Defendant contends that the court erred in imposing an “enhanced
sentence” inasmuch as he abided by the conditions required for the
imposition of probation, which the parties and the court had agreed
upon at the time of the plea. Defendant also contends that, instead
of imposing an “enhanced sentence,” the court should have afforded him
an opportunity to withdraw his plea. “Even assuming, arguendo, that
the statement of the court that it was ‘inclined’ to sentence
defendant to a period of probation [on each count] constituted a
commitment to such sentence, we conclude that defendant failed to
preserve his contention[s] [concerning the alleged enhanced sentence]
for our review because he neither objected to the alleged enhanced
sentence nor moved to withdraw his plea” (People v Webb, 299 AD2d 955,
955, lv denied 99 NY2d 565; see People v Parks, 309 AD2d 1172, 1173,
lv denied 1 NY3d 577). We decline to exercise our power to review
defendant’s contentions as a matter of discretion in the interest of
-2- 1072
KA 13-02217
justice (see CPL 470.15 [3] [c]).
Entered: January 2, 2015 Frances E. Cafarell
Clerk of the Court