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

850
KA 12-00899
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

BILLIE EPPS, DEFENDANT-APPELLANT.


MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered July 23, 2010. The judgment convicted
defendant, upon his plea of guilty, of sexual abuse in the first
degree (two counts).

     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 two counts of sexual abuse in the first
degree (Penal Law § 130.65 [3]). Defendant contends that Supreme
Court erred in enhancing his sentence without affording him the
opportunity to withdraw his plea (see People v Selikoff, 35 NY2d 227,
241, cert denied 419 US 1122) and that his waiver of the right to
appeal does not foreclose him from raising that contention. We agree
with defendant that the waiver of the right to appeal does not
encompass his contention regarding the alleged enhanced sentence (see
People v Joyner, 19 AD3d 1129, 1129; People v Lighthall, 6 AD3d 1170,
1171, lv denied 3 NY3d 643). Defendant, however, failed to preserve
that contention for our review because he failed to object to the
alleged enhanced sentence and did not move to withdraw his plea or to
vacate the judgment of conviction on that ground (see Joyner, 19 AD3d
at 1129; People v Webb, 299 AD2d 955, 955, lv denied 99 NY2d 565), and
we decline to exercise our power to review it as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).




Entered:   September 27, 2013                      Frances E. Cafarell
                                                   Clerk of the Court
