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People v. Aviles

Appellate Division of the Supreme Court of New York, Second Department
May 15, 1989
150 A.D.2d 590 (N.Y. App. Div. 1989)

Opinion

May 15, 1989

Appeal from the Supreme Court, Kings County, Goldman, J., Moskowitz, J.


Ordered that the judgments and amended judgment are affirmed.

On June 6, 1983, after having pleaded guilty to attempted robbery in the second degree in full satisfaction of indictment No. 709/83, the defendant was sentenced to 30 days' imprisonment and five years' probation. On January 31, 1985, the defendant was convicted of attempted robbery in the second degree under indictment No. 946/84. On February 7, 1985, the defendant was found to be in violation of the conditions of his probation under indictment No. 709/83, and was sentenced to a term of imprisonment.

The defendant now contends that his plea allocutions under both indictments were insufficient as a matter of law, requiring the vacatur of both pleas. However, having failed to move to withdraw his pleas prior to the imposition of the sentences or to vacate the judgments pursuant to CPL 440.10, the defendant has not preserved the issues of the sufficiency of his plea allocutions for appellate review (see, CPL 470.05; People v Pellegrino, 60 N.Y.2d 636). In any event, the defendant's claims with respect thereto are without merit (see, People v Harris, 61 N.Y.2d 9).

We find that the sentence imposed upon the defendant's violation of probation under indictment No. 709/83 was neither harsh nor excessive and was a proper exercise of the court's discretion (see, People v Suitte, 90 A.D.2d 80). Thompson, J.P., Kunzeman, Eiber, Spatt and Balletta, JJ., concur.


Summaries of

People v. Aviles

Appellate Division of the Supreme Court of New York, Second Department
May 15, 1989
150 A.D.2d 590 (N.Y. App. Div. 1989)
Case details for

People v. Aviles

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EVANS AVILES, Also…

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

Date published: May 15, 1989

Citations

150 A.D.2d 590 (N.Y. App. Div. 1989)
541 N.Y.S.2d 458

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