SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
[407] KA 12-01055 PRESENT: SMITH, J.P., VALENTINO, WHALEN, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ROBERT J. EPPOLITO, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
ANNA JOST, TONAWANDA, FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered April 26, 2012. The judgment revoked defendant’s sentence of probation and imposed a sentence of imprisonment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment that, upon his admission to violating conditions of probation, revoked the sentence of probation imposed on his conviction of attempted aggravated criminal contempt (Penal Law §§ 110.00, 215.52 [1]) and sentenced him to a term of imprisonment. In appeal No. 2, defendant appeals from a judgment convicting him, upon his plea of guilty, of assault in the second degree (§ 120.05 [2]). Defendant concedes in both appeals that he failed to preserve for our review his contention that the admission and guilty plea, respectively, were not knowing, voluntary or intelligent “inasmuch as [he] failed to move to withdraw [his] admission [or plea] on that ground” or to vacate either judgment (People v Shaw, 118 AD3d 1461, 1461 , lv denied 24 NY3d 1005 ; see People v Russell, 55 AD3d 1314, 1314-1315 , lv denied 11 NY3d 930 ; see generally People v Lopez, 71 NY2d 662, 665 ). These cases do not fall within the narrow exception to the preservation requirement set forth in Lopez ( 71 NY2d at 666 ). Contrary to defendant’s contention in appeal No. 2, he was properly sentenced as a second felony offender based on his conviction of attempted aggravated criminal contempt as a predicate felony (see Penal Law § 70.06 [1] [b] [ii]; People v Newton,
91 AD3d 1281, 1281 , lv denied 19 NY3d 965 ). Finally, we conclude that the sentences in both appeals are not unduly harsh or severe.
Entered: March 27, 2015 Frances E. Cafarell Clerk of the Court
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