Opinion
03-25-2016
The PEOPLE of the State of New York, Respondent, v. Gerard ALLEN, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Kristen McDermott of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Opinion
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of robbery in the first degree (Penal Law § 160.15[4] ), defendant contends that his plea was not voluntarily, knowingly, and intelligently entered because a potential defense was raised prior to the plea proceeding. Defendant failed to preserve that contention for our review because he did not move to withdraw his plea or to vacate the judgment of conviction, and this case does not fall within the rare exception to the preservation requirement set forth in People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 inasmuch as nothing in the plea colloquy calls into question the voluntariness of the plea or casts significant doubt on defendant's guilt (see People v. Wilson, 115 A.D.3d 1229, 1229, 982 N.Y.S.2d 636, lv. denied 23 N.Y.3d 969, 988 N.Y.S.2d 577, 11 N.E.3d 727). To the extent that defendant contends that the potential defense was raised in the presentence report, defendant likewise failed to preserve that contention for our review (see People v. Young, 281 A.D.2d 950, 950, 723 N.Y.S.2d 588, lv. denied 96 N.Y.2d 909, 730 N.Y.S.2d 808, 756 N.E.2d 96). Contrary to defendant's further contention, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
PERADOTTO, J.P., LINDLEY, DeJOSEPH, CURRAN, and SCUDDER, JJ., concur.