| People v Schmiege |
| 2019 NY Slip Op 04597 [173 AD3d 1685] |
| June 7, 2019 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, July 31, 2019 |
[*1]
The People of the State of New York,
Respondent, v Brian E. Schmiege, Appellant. |
Robert M. Graff, Lockport, for defendant-appellant.
Caroline A. Wojtaszek, District Attorney, Lockport (Thomas H. Brandt of counsel), for
respondent.
Appeal from a judgment of the Supreme Court, Niagara County (Richard C. Kloch, Sr.,
A.J.), rendered November 16, 2017. The judgment revoked defendant's sentence of probation and
imposed a sentence of incarceration.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment revoking the sentence of probation
previously imposed upon his conviction of burglary in the third degree (Penal Law
§ 140.20) and imposing an indeterminate term of incarceration of
21/3 to 7 years. Defendant failed to preserve for our review his challenge to the
voluntariness of his admission to the violation of probation because he "did not move on that
ground either to withdraw his admission . . . or to vacate the judgment revoking his
sentence of probation" (People v
Spangenberg, 118 AD3d 1444, 1444 [4th Dept 2014], lv denied 24 NY3d 965
[2014]; see People v Williams, 166
AD3d 1596, 1597 [4th Dept 2018], lv denied 32 NY3d 1211 [2019]). The rare
exception to the preservation rule does not apply here because defendant said nothing during the
admission colloquy that cast "significant doubt upon [his] guilt or otherwise call[ed] into
question the voluntariness of the [admission]" (People v Lopez, 71 NY2d 662, 666
[1988]; see Williams, 166 AD3d at 1597). Contrary to defendant's further contention, the
sentence is not unduly harsh or severe. Present—Smith, J.P., Carni, DeJoseph, Troutman
and Winslow, JJ.