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

407
KA 12-01055
PRESENT: SMITH, J.P., VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ROBERT J. EPPOLITO, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


ANNA JOST, TONAWANDA, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered April 26, 2012. The judgment revoked
defendant’s sentence of probation and imposed a sentence of
imprisonment.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
that, upon his admission to violating conditions of probation, revoked
the sentence of probation imposed on his conviction of attempted
aggravated criminal contempt (Penal Law §§ 110.00, 215.52 [1]) and
sentenced him to a term of imprisonment. In appeal No. 2, defendant
appeals from a judgment convicting him, upon his plea of guilty, of
assault in the second degree (§ 120.05 [2]). Defendant concedes in
both appeals that he failed to preserve for our review his contention
that the admission and guilty plea, respectively, were not knowing,
voluntary or intelligent “inasmuch as [he] failed to move to withdraw
[his] admission [or plea] on that ground” or to vacate either judgment
(People v Shaw, 118 AD3d 1461, 1461, lv denied 24 NY3d 1005; see
People v Russell, 55 AD3d 1314, 1314-1315, lv denied 11 NY3d 930; see
generally People v Lopez, 71 NY2d 662, 665). These cases do not fall
within the narrow exception to the preservation requirement set forth
in Lopez (71 NY2d at 666). Contrary to defendant’s contention in
appeal No. 2, he was properly sentenced as a second felony offender
based on his conviction of attempted aggravated criminal contempt as a
predicate felony (see Penal Law § 70.06 [1] [b] [ii]; People v Newton,
91 AD3d 1281, 1281, lv denied 19 NY3d 965). Finally, we conclude that
the sentences in both appeals are not unduly harsh or severe.

Entered:    March 27, 2015                         Frances E. Cafarell
                                                   Clerk of the Court
