Opinion
No. 466 KA 20-01677
07-08-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MICHAEL A. TISDALE, DEFENDANT-APPELLANT. (APPEAL NO. 1.)
KELIANN M. ARGY, ORCHARD PARK, FOR DEFENDANT-APPELLANT. DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (ADAM W. KOCH OF COUNSEL), FOR RESPONDENT.
KELIANN M. ARGY, ORCHARD PARK, FOR DEFENDANT-APPELLANT.
DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (ADAM W. KOCH OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, NEMOYER, CURRAN, AND BANNISTER, JJ.
Appeal from a judgment of the Wyoming County Court (Michael M. Mohun, J.), rendered October 29, 2020. The judgment convicted defendant upon his plea of guilty of aggravated family offense.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of one count of aggravated family offense (Penal Law § 240.75 [1]), defendant contends that his guilty plea was not knowingly, voluntarily, and intelligently entered. Initially, as defendant asserts and the People correctly concede, that contention survives defendant's waiver of the right to appeal (see People v Stafford, 195 A.D.3d 1466, 1466 [4th Dept 2021], lv denied 37 N.Y.3d 1029 [2021]). However, it is unpreserved for our review inasmuch as defendant did not move to withdraw his guilty plea or vacate the judgment of conviction (see generally People v Bush, 38 N.Y.3d 66, 70 [2022]; People v Sheppard, 149 A.D.3d 1569, 1569 [4th Dept 2017], lv denied 29 N.Y.3d 1133 [2017]; People v Jones, 118 A.D.3d 1354, 1354 [4th Dept 2014], lv denied 24 N.Y.3d 961 [2014]). 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, defendant's further contention that the indictment was duplicitous and multiplicitous was forfeited by defendant's guilty plea and, in any event, the waiver of the right to appeal encompasses that contention (see People v Jackson, 129 A.D.3d 1342, 1342-1343 [3d Dept 2015]; People v Slingerland, 101 A.D.3d 1265, 1266 [3d Dept 2012], lv denied 20 N.Y.3d 1104 [2013]; People v Nichols, 32 A.D.3d 1316, 1317 [4th Dept 2006], lv denied 8 N.Y.3d 848 [2007], reconsideration denied 8 N.Y.3d 988 [2007]).