Opinion
320 KA 16-00549
03-26-2021
The PEOPLE of the State of New York, Respondent, v. Melvin G. CRUZ, Also Known as Melvin Gonzalez, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
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 rape in the first degree ( Penal Law § 130.35 [4] ). We affirm. Defendant contends that the plea was not voluntary because County Court abused its discretion in denying his request for an adjournment of the scheduled trial. Defendant failed to preserve that contention for appellate review because he did not move to withdraw his plea or to vacate the judgment of conviction (see People v. Shanley , 189 A.D.3d 2108, 2108-2109, 134 N.Y.S.3d 856 [4th Dept. 2020] ). Furthermore, the narrow exception to the preservation requirement does not apply (see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). In any event, we conclude that the court did not abuse its discretion in denying defendant's request for an adjournment (see People v. Spears , 24 N.Y.3d 1057, 1058-1060, 999 N.Y.S.2d 818, 24 N.E.3d 1082 [2014] ; People v. Brown , 159 A.D.2d 1011, 1011, 555 N.Y.S.2d 637 [4th Dept. 1990], lv denied 76 N.Y.2d 731, 558 N.Y.S.2d 893, 557 N.E.2d 1189 [1990] ). "The court's exercise of discretion in denying a request for an adjournment will not be overturned absent a showing of prejudice" ( People v. Arroyo , 161 A.D.2d 1127, 1127, 555 N.Y.S.2d 499 [4th Dept. 1990], lv denied 76 N.Y.2d 852, 560 N.Y.S.2d 991, 561 N.E.2d 891 [1990] ; see People v. Bones , 50 A.D.3d 1527, 1528, 856 N.Y.S.2d 408 [4th Dept. 2008], lv denied 10 N.Y.3d 956, 863 N.Y.S.2d 140, 893 N.E.2d 446 [2008] ), and here defendant failed to make the requisite showing of prejudice.