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

632
KA 13-00310
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

LEONARD LEE BURDEN, ALSO KNOWN AS LB,
DEFENDANT-APPELLANT.


JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (RICHARD W. YOUNGMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wayne County Court (Dennis M.
Kehoe, J.), rendered January 31, 2013. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal sale of a
controlled substance in the third 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 attempted criminal sale of a controlled substance
in the third degree (Penal Law §§ 110.00, 220.39 [1]), defendant
contends that County Court erred in enhancing his sentence without
affording him the opportunity to withdraw his plea (see generally
People v Selikoff, 35 NY2d 227, 241-242, cert denied 419 US 1122).
“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” (People v Epps, 109 AD3d 1104, 1105; see People v
Gerald, 103 AD3d 1249, 1250). We decline to exercise our power to
review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [3] [c]), and we conclude that the sentence,
as imposed, is not unduly harsh or severe.




Entered:   June 13, 2014                           Frances E. Cafarell
                                                   Clerk of the Court
