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PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT, v. IVAN PARKS, DEFENDANT-APPELLANT. (APPEAL NO. 1.)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum:

In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of sexual abuse in the first degree (Penal Law 130.65) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of attempted sexual abuse in the first degree (110.00, 130.65 [1]). Defendant's contention that Supreme Court erred in failing to consider whether it could impose concurrent sentences based upon mitigating circumstances pursuant to section 70.25 (2-b) is not preserved for our review ( see People v. Butler, 248 A.D.2d 249, lv denied 91 N.Y.2d 1005, 1007, 1013; see also People v. Fernandez, 251 A.D.2d 142, 143, lv denied 92 N.Y.2d 924; People v. Hamlet, 227 A.D.2d 203, 204, lv denied 88 N.Y.2d 1021), and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Defendant further contends that the court erred in imposing enhanced sentences. "Even assuming, arguendo, that the statement of the court that it was `inclined' to sentence defendant to * * * [certain sentences] constituted a commitment to such sentence[s], we conclude that defendant failed to preserve his contention for our review because he neither objected to the alleged enhanced sentence[s] nor moved to withdraw his plea" ( People v. Webb, 299 A.D.2d 955, 955, lv denied 99 N.Y.2d 565). We also decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). Finally, the sentences imposed are neither unduly harsh nor severe.

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PEOPLE v. PARKS, KA 01-00829 [4th Dept 2003
(Oct 2, 2003)