MURCIN, SHANNON B., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1061
KA 15-01230
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
SHANNON B. MURCIN, DEFENDANT-APPELLANT.
NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (GREGORY A. KILBURN OF
COUNSEL), 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 December 4, 2014. The judgment convicted
defendant, upon his plea of guilty, of driving while ability impaired
by drugs.
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 driving while ability impaired by drugs as a class E
felony (Vehicle and Traffic Law §§ 1192 [4]; 1193 [1] [c] [i] [A]),
defendant contends that his plea was not knowing, voluntary, and
intelligent because the no-arrest condition of the plea agreement was
ambiguous, and that County Court should have conducted a hearing
pursuant to People v Outley (80 NY2d 702) before imposing an enhanced
sentence based on his violation of that condition. Inasmuch as
defendant conceded that his postplea arrests violated the plea
agreement, withdrew his motion seeking withdrawal of his plea, and did
not move to vacate the judgment of conviction, his contentions are not
preserved for our review (see People v Lorenz, 120 AD3d 1528, 1529, lv
denied 24 NY3d 1045; see also People v Hassett, 119 AD3d 1443, 1444,
lv denied 24 NY3d 961; People v Bouwens, 90 AD3d 1557, 1558, lv denied
18 NY3d 955). We decline to exercise our power to review defendant’s
contentions as a matter of discretion in the interest of justice (see
CPL 470.15 [3] [c]).
Entered: November 18, 2016 Frances E. Cafarell
Clerk of the Court