Summary
In People v. Acevedo (219 A.D.2d 560, lv denied 87 N.Y.2d 969), relying on Toxey (supra), we similarly declined to review defendant's unpreserved argument that the court should not have accepted his plea without first asking whether he understood that he had raised an affirmative defense to first-degree robbery by claiming that the gun possessed by his accomplice was unloaded.
Summary of this case from People v. WallaceOpinion
September 28, 1995
Appeal from the Supreme Court, New York County (Clifford A. Scott, J.).
Defendant's argument that the court should not have accepted his plea without inquiring into whether he understood that he had raised an affirmative defense to the first degree robbery charge by asserting that the gun possessed by his accomplice was not loaded (Penal Law § 160.15) is unpreserved for appellate review as a matter of law inasmuch as defendant never moved to withdraw the plea or to vacate the judgment and his recitation of the facts at the plea proceeding in fact did not raise an affirmative defense or otherwise cast significant doubt upon his guilt ( People v Toxey, 86 N.Y.2d 725, affg 202 A.D.2d 330; People v Lopez, 71 N.Y.2d 662, 665-666). There being nothing in the record to indicate the existence of a possible affirmative defense, the court was under no duty to inquire further to ensure that the plea was being intelligently entered (People v Lopez, supra, at 666, n 2; see, People v Caraballo, 208 A.D.2d 413, lv denied 84 N.Y.2d 1010; People v Martinez, 127 A.D.2d 855).
Concur — Sullivan, J.P., Rubin, Kupferman, Asch and Nardelli, JJ.