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People v. Willingham

Appellate Division of the Supreme Court of New York, Second Department
Jun 14, 1993
194 A.D.2d 703 (N.Y. App. Div. 1993)

Opinion

June 14, 1993

Appeal from the Supreme Court, Kings County (Owens, J.).


Ordered that the judgment is affirmed.

The defendant did not move to withdraw his plea of guilty, with the result that he has not preserved for appellate review his claim that his plea allocution was defective (see, People v Bell, 47 N.Y.2d 839; People v. Bresciano, 165 A.D.2d 815; People v Ward, 165 A.D.2d 820; People v. Jones, 109 A.D.2d 893). This case does not fit within the narrow exception to the preservation doctrine set forth in People v. Lopez ( 71 N.Y.2d 662) and People v. Serrano ( 15 N.Y.2d 304). In his factual allocution, the defendant stated that he held his hand inside his pocket so as to simulate a gun and, on one occasion, he told his victim that he had a gun. These statements did not negate an element of the crimes to which he pleaded but actually were admissions of the element "[d]isplay[ed] what appear[ed] to be a pistol [or] revolver" (Penal Law § 160.15). Since this plea was part of a knowing and voluntary bargain, we decline to exercise our interest of justice jurisdiction to review the defendant's contention.

To the extent that our decisions in People v. LeGrand ( 155 A.D.2d 482), People v. Royster ( 91 A.D.2d 1074), and People v Hassan ( 79 A.D.2d 713) are to the contrary, they should not be followed. Mangano, P.J., Sullivan, O'Brien, Ritter and Pizzuto, JJ., concur.


Summaries of

People v. Willingham

Appellate Division of the Supreme Court of New York, Second Department
Jun 14, 1993
194 A.D.2d 703 (N.Y. App. Div. 1993)
Case details for

People v. Willingham

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RICHARD WILLINGHAM…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 14, 1993

Citations

194 A.D.2d 703 (N.Y. App. Div. 1993)
599 N.Y.S.2d 123

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