SMITH, BRIAN L., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
892
KA 14-01830
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
BRIAN L. SMITH, ALSO KNOWN AS BRIAN LEE SMITH,
DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
MICHAEL STEINBERG, ROCHESTER, FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Genesee County (Eric
R. Adams, A.J.), rendered June 25, 2014. The judgment convicted
defendant, upon his plea of guilty, of criminal contempt in the first
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of criminal contempt in the
first degree (Penal Law § 215.51 [c]) and, in appeal No. 2, he appeals
from a judgment convicting him upon his plea of guilty of aggravated
family offense (§ 240.75 [1]). The two matters were covered by a
single plea colloquy. Defendant contends in each appeal that Supreme
Court erred in enhancing his sentence without an adequate factual
basis (see generally People v Outley, 80 NY2d 702, 712-713).
Defendant failed to preserve that contention for our review inasmuch
as “he failed to object to the alleged enhanced sentence[s] and did
not move to withdraw his plea or to vacate the judgment[s] of
conviction on that ground” (People v Laurendi, 126 AD3d 1401, 1402, lv
denied 26 NY3d 1009 [internal quotation marks omitted]; see 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 further contends in each appeal that he was denied
effective assistance of counsel at sentencing. To the extent that
such contention survives his guilty plea, we conclude that it lacks
merit (see People v LaCroce, 83 AD3d 1388, 1388, lv denied 17 NY3d
807). Defendant “receive[d] an advantageous plea and nothing in the
record casts doubt on the apparent effectiveness of counsel” (People v
-2- 892
KA 14-01830
Ford, 86 NY2d 397, 404).
Entered: November 10, 2016 Frances E. Cafarell
Clerk of the Court