THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DONALD WASHINGTON DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon a plea of guilty, of criminal contempt in the second degree (Penal Law § 215.50 [3]). We affirm.

Defendant contends that Supreme Court failed to abide by its sentencing promise and that he is therefore entitled to specific performance of the plea agreement, which he defines as a split sentence consisting of a term of imprisonment equal to his presentence time served and a term of three years of probation reduced by the period of presentence time served. As a preliminary matter, we note that it is unnecessary to review defendant's challenge to his waiver of the right to appeal inasmuch as even a valid waiver of the right to appeal would not foreclose his contention that the sentence imposed violated the terms of the plea agreement (see People v Balkum, 169 AD3d 1358, 1358-1359 [4th Dept 2019], lv denied 33 NY3d 974 [2019]; People v Feher, 165 AD3d 1610, 1610 [4th Dept 2018], lv denied 32 NY3d 1171 [2019]). We conclude, however, that defendant was required, and failed, to preserve that contention for our review. The record establishes that, at the outset of the discussion of the sentence during the sentencing proceeding, prior to the imposition of sentence, defense counsel twice affirmatively requested that the court impose the bargained-for sentence of “probation” without any mention of a split sentence, and the court likewise confirmed that, under the plea agreement, it was going to “sentence [defendant] to probation” (see generally People v Bush, 38 NY3d 66, 68 [2022]). Nonetheless, “[p]rior to imposition of that sentence, defendant, who had the practical ability to do so, failed to protest or otherwise seek to withdraw his guilty plea” on the ground he now advances on appeal (id.). Inasmuch as defendant “had the actual and practical ability to raise his current argument at the outset of the sentencing proceeding and prior to the imposition of sentence, his failure to do so” renders his contention unpreserved for appellate review (id. at 75). 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]; People v Martin, 222 AD3d 1414, 1415-1416 [4th Dept 2023], lv denied 41 NY3d 966 [2024]; People v Ortiz, 43 AD3d 1348, 1348 [4th Dept 2007], lv denied 9 NY3d 1008 [2007]).

Entered: October 2, 2026

Ann Dillon Flynn

Clerk of the Court