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

905
KA 10-02248
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SCOTT O’BRIEN, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C.
AZZARELLI OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered January 6, 2009. The judgment convicted
defendant, upon his plea of guilty, of gang assault in the first
degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of gang assault in the first degree (Penal Law
§ 120.07). Contrary to defendant’s contention, the record establishes
that he knowingly, voluntarily and intelligently waived the right to
appeal (see generally People v Lopez, 6 NY3d 248, 256). That valid
waiver forecloses any challenge by defendant to the severity of the
sentence (see id. at 255; People v Hidalgo, 91 NY2d 733, 737),
including his contention that the sentence is unduly harsh and severe
because it is directed to run consecutively to a prior undischarged
term of incarceration (cf. People v Springstead, 57 AD3d 1397, 1397-
1398, lv denied 12 NY3d 788).

     Defendant further contends that County Court erred in imposing an
enhanced sentence based upon his postplea conduct by directing that
the term of incarceration for his gang assault conviction run
consecutively with the prior undischarged term of incarceration.
Although that contention survives defendant’s valid waiver of the
right to appeal (see People v Dietz, 66 AD3d 1400, 1400, lv denied 13
NY3d 906; People v Ibrahim, 48 AD3d 1095, 1095, lv denied 10 NY3d
864), defendant did not move to withdraw his plea and therefore failed
to preserve his contention for our review. In any event, the record
establishes that the court did not impose an enhanced sentence and
thus defendant’s contention lacks merit (see Ibrahim, 48 AD3d at 1095;
see also Dietz, 66 AD3d at 1400). Indeed, the court advised defendant
                                 -2-                           905
                                                         KA 10-02248

at the plea proceeding that he should “expect” to receive and, “in all
likelihood,” would receive a consecutive sentence. Even assuming,
arguendo, that the court enhanced defendant’s sentence, we conclude
that the record supports the court’s determination that defendant’s
postplea conduct warranted the imposition of a consecutive sentence.
Finally, we reject defendant’s contention that the court was bound by
the recommendation in the presentence report that defendant be
sentenced to a concurrent term of incarceration (see People v Mills,
17 AD3d 712, 713, lv denied 5 NY3d 766; People v LaMarche, 253 AD2d
944, 944).




Entered:   September 28, 2012                   Frances E. Cafarell
                                                Clerk of the Court
