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

386
KA 14-00931
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

CHAD M. JOHNSTON, DEFENDANT-APPELLANT.


NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW, FOR DEFENDANT-APPELLANT.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wyoming County Court (Michael M.
Mohun, J.), rendered April 24, 2014. The judgment convicted
defendant, upon his plea of guilty, of attempted assault on a peace
officer, police officer, fireman or emergency medical services
professional.

     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 attempted assault on a peace officer, police
officer, fireman or emergency medical services professional (Penal Law
§§ 110.00, 120.08), defendant contends that he was denied due process
at sentencing when County Court imposed a sentence based on
defendant’s postplea arrest without determining that the information
upon which it was basing the sentence was reliable and accurate. As a
preliminary matter, we note that defendant’s contention is not
encompassed by the waiver of the right to appeal (see People v Kolata,
119 AD3d 1376, 1377; see generally People v Peck, 90 AD3d 1500, 1501).
However, defendant failed to preserve his contention for our review
because he “failed to object to the sufficiency of the court’s inquiry
or to request a hearing, and he did not move to withdraw his plea on
that ground” (People v Hassett, 119 AD3d 1443, 1444, lv denied 24 NY3d
961). 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]).




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