People v. Johnston

Appeal from a judgment of the Wyoming County Court (Michael M. Mohun, J.), rendered April 24, 2014. The judgment convicted defendant, upon his plea of guilty, of attempted assault on a peace officer, police officer, fireman or emergency medical services professional.

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 attempted assault on a peace officer, police officer, fireman or emergency medical services professional (Penal Law §§ 110.00, 120.08), defendant contends that he was denied due process at sentencing when County Court imposed a sentence based on defendant’s postplea arrest without determining that the information upon which it was basing the sentence was reliable and accurate. As a preliminary matter, we note that defendant’s contention is not encompassed by the waiver of the right to appeal (see People v Kolata, 119 AD3d 1376, 1377 [2014]; see generally People v Peck, 90 AD3d 1500, 1501 [2011]). However, defendant failed to preserve his contention for our review because he “failed to object to the sufficiency of the court’s inquiry or to request a hearing, and he did not move to withdraw his plea on that ground” (People v Hassett, 119 AD3d 1443, 1444 [2014], lv denied 24 NY3d 961 [2014]). 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]).

Present — Centra, J.P., Peradotto, Carni, Curran and Troutman, JJ.