Opinion
1197 KA 17–00611
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Tristan M. MAYES, Defendant–Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR DEFENDANT–APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR DEFENDANT–APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, 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 two counts of predatory sexual assault against a child ( Penal Law § 130.96 ). Defendant failed to preserve for our review his contention that the plea was not knowingly, intelligently, and voluntarily entered because he failed to move to withdraw the plea or to vacate the judgment of conviction (see People v. Jones, 175 A.D.3d 1845, 1845–1846, 109 N.Y.S.3d 774 [4th Dept. 2019] ; People v. Rojas, 147 A.D.3d 1535, 1536, 47 N.Y.S.3d 813 [4th Dept. 2017], lv denied 29 N.Y.3d 1036, 62 N.Y.S.3d 305, 84 N.E.3d 977 [2017] ). "[T]his case does not fall within the rare exception to the preservation requirement because nothing defendant said during the plea colloquy or the sentencing hearing ‘clearly cast[ ] significant doubt upon the defendant's guilt or otherwise call[ed] into question the voluntariness of the plea’ " ( Jones, 175 A.D.3d at 1846, 109 N.Y.S.3d 774, quoting People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ). Finally, the sentence is not unduly harsh or severe.