Summary
finding issue unpreserved for review where defendant did not raise it in his motion to vacate
Summary of this case from Saladeen v. ChappiusOpinion
February 23, 2000
Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered January 11, 1995, convicting defendant, upon his plea of guilty, of robbery in the second degree, and sentencing him to a term of 2 to 7 years, unanimously affirmed.
Cynthia J. Pree, for Respondent.
Alexei Schact, for Defendant-Appellant.
ROSENBERGER, J.P., NARDELLI, MAZZARELLI, WALLACH, RUBIN, JJ.
Assuming arguendo that defendant's post-sentencing CPL 440.20 motion encompassed a motion to vacate judgment pursuant to CPL 440.10, he still failed to argue that his plea allocution was deficient for lack of an admission to being aided by others actually present, and the issue is therefore unpreserved for review. Moreover, that motion is not properly before this Court because defendant did not obtain leave to appeal from the order denying the motion (CPL 450.15 ; 460.15). We find the plea to be knowing, intelligent and voluntary, and that nothing in the allocution cast doubt on defendant's guilt (see, People v. Toxey, 86 N.Y.2d 725).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.