Opinion
03-24-2017
The PEOPLE of the State of New York, Respondent, v. Ronald HOUGH, Sr., Defendant–Appellant.
Kathryn Friedman, Buffalo, for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
Kathryn Friedman, Buffalo, for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND NEMOYER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[2] ). Defendant's contention that County Court erred in accepting his "involuntary and illegal" plea is not preserved for our review inasmuch as defendant did not move to withdraw his plea of guilty or to vacate the judgment of conviction (see People v. Lugg, 108 A.D.3d 1074, 1075, 968 N.Y.S.2d 785 ; People v. Burney, 93 A.D.3d 1334, 1334, 940 N.Y.S.2d 507 ; see generally People v. Pastor, 28 N.Y.3d 1089, 1090–1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 ). Moreover, because nothing in the record of the proceedings before the court calls into question the voluntariness of defendant's plea or casts significant doubt upon his guilt, this case does not fall within the exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Mobley, 118 A.D.3d 1336, 1337, 988 N.Y.S.2d 323, lv. denied 24 N.Y.3d 1121, 3 N.Y.S.3d 763, 27 N.E.3d 477 ). There is no merit to defendant's contention that the sentence is illegal (see Penal Law § 70.06[6][b] ). Finally, even assuming, arguendo, that defendant's waiver of the right to appeal was invalid and thus does not preclude our review of his challenge to the severity of the sentence (see People v. Davis, 114 A.D.3d 1166, 1167, 979 N.Y.S.2d 903, lv. denied 23 N.Y.3d 1035, 993 N.Y.S.2d 249, 17 N.E.3d 504 ; People v. Theall, 109 A.D.3d 1107, 1108, 971 N.Y.S.2d 753, lv. denied
22 N.Y.3d 1159, 984 N.Y.S.2d 643, 7 N.E.3d 1131 ), we nevertheless conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.