THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. APPEAL NO (2010)

Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. CHARLES REED, DEFENDANT-APPELLANT. (APPEAL NO. 2.)

KA 07-01033

Decided: November 12, 2010

PRESENT: SCUDDER, P.J., MARTOCHE, CENTRA, FAHEY, AND GREEN, JJ.

JON STERN, ROCHESTER, FOR DEFENDANT-APPELLANT. MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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 criminal possession of a weapon in the third degree (Penal Law § 265.02 [former (4) ] ), defendant contends that Supreme Court erred in enhancing his sentence based on his arrest between the time of his plea and the time of sentencing. Defendant, however, did not object to the enhanced sentence and did not move to withdraw his plea or to vacate the judgment of conviction, and he therefore failed to preserve his contention for our review (see People v. Cox, 27 AD3d 1170, lv denied 6 NY3d 893; People v. Holmes, 306 A.D.2d 889, lv denied 100 N.Y.2d 621). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). The sentence is not unduly harsh or severe.

Patricia L. Morgan

Clerk of the Court

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