September 27, 2013
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
BILLIE EPPS, DEFENDANT-APPELLANT.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.), rendered July 23, 2010. The judgment convicted defendant, upon his plea of guilty, of sexual abuse in the first degree (two counts).
MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.
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 two counts of sexual abuse in the first degree (Penal Law § 130.65 ). Defendant contends that Supreme Court erred in enhancing his sentence without affording him the opportunity to withdraw his plea (see People v Selikoff, 35 N.Y.2d 227, 241, cert denied 419 U.S. 1122) and that his waiver of the right to appeal does not foreclose him from raising that contention. We agree with defendant that the waiver of the right to appeal does not encompass his contention regarding the alleged enhanced sentence (see People v Joyner, 19 A.D.3d 1129, 1129; People v Lighthall, 6 A.D.3d 1170, 1171, lv denied 3 N.Y.3d 643). Defendant, however, failed to preserve that contention for our review because he failed to object to the alleged enhanced sentence and did not move to withdraw his plea or to vacate the judgment of conviction on that ground (see Joyner, 19 A.D.3d at 1129; People v Webb, 299 A.D.2d 955, 955, lv denied 99 N.Y.2d 565), 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]).