Opinion
KA 01-00829
October 2, 2003.
Appeal from a judgment of Supreme Court, Erie County (Tills, J.), entered July 9, 1999, convicting defendant upon his plea of guilty of sexual abuse in the first degree.
MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of sexual abuse in the first degree (Penal Law 130.65) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of attempted sexual abuse in the first degree (110.00, 130.65 [1]). Defendant's contention that Supreme Court erred in failing to consider whether it could impose concurrent sentences based upon mitigating circumstances pursuant to section 70.25 (2-b) is not preserved for our review ( see People v. Butler, 248 A.D.2d 249, lv denied 91 N.Y.2d 1005, 1007, 1013; see also People v. Fernandez, 251 A.D.2d 142, 143, lv denied 92 N.Y.2d 924; People v. Hamlet, 227 A.D.2d 203, 204, lv denied 88 N.Y.2d 1021), and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Defendant further contends that the court erred in imposing enhanced sentences. "Even assuming, arguendo, that the statement of the court that it was `inclined' to sentence defendant to * * * [certain sentences] constituted a commitment to such sentence[s], we conclude that defendant failed to preserve his contention for our review because he neither objected to the alleged enhanced sentence[s] nor moved to withdraw his plea" ( People v. Webb, 299 A.D.2d 955, 955, lv denied 99 N.Y.2d 565). We also decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). Finally, the sentences imposed are neither unduly harsh nor severe.