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

607
KA 15-00124
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ALEX S. DUMBLETON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (GARY M. PHILLIPS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered November 13, 2014. The judgment convicted
defendant, upon his plea of guilty, of criminal contempt in the first
degree.

     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 criminal contempt in the first degree (Penal Law
§ 215.51 [b] [v]), defendant contends that County Court erred in
enhancing his sentence based on a violation of the plea agreement
without first conducting a hearing pursuant to People v Outley (80
NY2d 702). Although defendant’s contention survives his valid waiver
of the right to appeal (see People v Scott, 101 AD3d 1773, 1773, lv
denied 21 NY3d 1019), defendant did not preserve that contention for
our review inasmuch as “he failed to object to the alleged enhanced
sentence and did not move to withdraw his plea or vacate the judgment
of conviction on that ground” (People v Epps, 109 AD3d 1104, 1105; see
People v Mills, 90 AD3d 1518, 1518, lv denied 18 NY3d 960), and we
decline to exercise our power to review it as a matter of discretion
in the interest of justice (see CPL 470.15 [3] [c]).




Entered:    May 5, 2017                            Frances E. Cafarell
                                                   Clerk of the Court
