People v. Brinson

Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.), rendered July 5, 2016. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third 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 each of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and criminal possession of a controlled substance in the third degree (§ 220.16 [1]). Defendant failed to preserve for our review his contention that County Court erred in considering improper factors in sentencing him (see People v Garson, 69 AD3d 650 , 652 [2d Dept 2010], lv denied and dismissed 15 NY3d 750 [2010]), and we decline to exercise our power to review his contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]). Furthermore, defendant waived his contention that the court erred in sentencing him in the absence of an updated presentence report (see People v Willie T.J., 101 AD3d 1626 , 1627 [4th Dept 2012], lv denied 20 NY3d 1105 [2013]). A preplea investigation report had been prepared within the preceding 12 months, and defendant explicitly waived the preparation of an updated pre-sentence report (see CPL 390.20 [4] [a] [iii]; People v Servey, 96 AD3d 1428 , 1429 [4th Dept 2012], lv denied 19 NY3d 1001 [2012]).

We reject defendant’s challenge to the severity of the

Present—Carni, J.P., Lindley, DeJoseph, Troutman and Winslow, JJ.