Opinion
2013-01-31
The PEOPLE of the State of New York, Respondent, v. Anthony J. WARREN, Appellant.
John R. Trice, Elmira, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.
John R. Trice, Elmira, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.
Before: ROSE, J.P., SPAIN, STEIN and McCARTHY, JJ.
SPAIN, J.
Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered July 29, 2011, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.
Defendant was charged in an indictment with attempted burglaryin the second degree after he was caught trying to break into an apartment. He pleaded guilty to this charge. In accordance with the terms of the plea agreement, he was sentenced as a persistent violent felony offender to 12 years to life in prison, along with a five-year period of postrelease supervision. County Court subsequently removed the postrelease supervision provision and resentenced defendant to 12 years to life in prison to be effective as of the date of the original sentencing. Defendant now appeals.
Defendant's sole contention is that his plea allocution was factually deficient because he never admitted to the specific act of trying to enter the dwelling unlawfully. However, defendant's challenge to the factual sufficiency of his plea is unpreserved for our review as the record fails to indicate that he moved to withdraw it or to vacate the judgment of conviction ( see People v. White, 96 A.D.3d 1299, 1300, 946 N.Y.S.2d 717 [2012],lv. denied19 N.Y.3d 1029, 953 N.Y.S.2d 563, 978 N.E.2d 115 [2012];People v. Flake, 95 A.D.3d 1371, 1372, 943 N.Y.S.2d 307 [2012],lv denied19 N.Y.3d 973, 950 N.Y.S.2d 356, 973 N.E.2d 766 [2012];People v. Harris, 82 A.D.3d 1449, 918 N.Y.S.2d 752 [2011],lv. denied17 N.Y.3d 953, 936 N.Y.S.2d 79, 959 N.E.2d 1028 [2011] ). Therefore, the judgment must be affirmed.
ORDERED that the judgment is affirmed.