        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

858
KA 15-02120
PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JERRY T. SADDLER, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (NATHAN J. GARLAND OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered November 17, 2015. The judgment convicted
defendant, upon his plea of guilty, of criminal contempt in the first
degree and assault in the second degree.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of criminal contempt in the
first degree (Penal Law § 215.51 [b] [v]) and assault in the second
degree (§ 120.05 [2]). In appeal No. 2, defendant appeals from a
judgment convicting him upon his plea of guilty of aggravated family
offense (§ 240.75 [1]). With respect to both appeals, we conclude
that the “waiver of the right to appeal is invalid because, based on
County Court’s statements at the plea proceeding, ‘defendant may have
erroneously believed that the right to appeal is automatically
extinguished upon entry of a guilty plea’ ” (People v Prince, 141 AD3d
1103, 1104, quoting People v Moyett, 7 NY3d 892, 893). We
nevertheless conclude that neither sentence is unduly harsh or severe.

     In appeal No. 1, defendant failed to preserve for our review his
challenge to the factual sufficiency of the plea allocution with
respect to the assault count because he did not move to withdraw his
plea or to vacate the judgment of conviction (see People v Lopez, 71
NY2d 662, 665). This case does not fall within the rare exception to
the preservation requirement inasmuch as nothing in the plea colloquy
“casts significant doubt upon the defendant’s guilt [of assault] or
otherwise calls into question the voluntariness of the plea” (id. at
666; see People v Rinker, 141 AD3d 1177, 1177). We decline to
exercise our power to review defendant’s challenge as a matter of
                                 -2-                           858
                                                         KA 15-02120

discretion in the interest of justice (see CPL 470.15 [3] [c]).




Entered:   November 10, 2016                   Frances E. Cafarell
                                               Clerk of the Court
