Judge: Decision Reported Below: 4th Dept: 145 AD3d 1431 (Cayuga)
Contrary to defendant's contention, this case does not fall within the narrow exception to the preservation rule set forth in ( People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). We further conclude that defendant failed to preserve for our review his contention in his pro se supplemental brief that he was coerced into taking the plea by statements made by the court (see generallyPeople v. Kelly , 145 A.D.3d 1431, 1431, 42 N.Y.S.3d 913 [4th Dept. 2016], lv denied 29 N.Y.3d 949, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017] ; People v. Lando , 61 A.D.3d 1389, 1389, 876 N.Y.S.2d 923 [4th Dept. 2009], lv denied 13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018 [2009] ). We reject defendant's contention in his main brief that the sentence is unduly harsh and severe.
Contrary to defendant's contention, this case does not fall within the narrow exception to the preservation rule set forth in People v Lopez (71 N.Y.2d 662, 666 [1988]). We further conclude that defendant failed to preserve for our review his contention in his pro se supplemental brief that he was coerced into taking the plea by statements made by the court (see generally People v Kelly, 145 A.D.3d 1431, 1431 [4th Dept 2016], lv denied 29 N.Y.3d 949 [2017]; People v Lando, 61 A.D.3d 1389, 1389 [4th Dept 2009], lv denied 13 N.Y.3d 746 [2009]).
Although that contention would survive even a valid waiver of the right to appeal (seePeople v. Juarbe , 162 A.D.3d 1625, 1625, 75 N.Y.S.3d 441 [4th Dept. 2018] ), defendant failed to move to withdraw his plea or to vacate the judgment of conviction on that ground and thus failed to preserve his contention for our review (seeid. at 1625-1626, 75 N.Y.S.3d 441 ; People v. Kelly , 145 A.D.3d 1431, 1431, 42 N.Y.S.3d 913 [4th Dept. 2016], lv denied 29 N.Y.3d 949, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017] ; see generallyPeople v. Grimes , 53 A.D.3d 1055, 1056, 860 N.Y.S.2d 723 [4th Dept. 2008], lv denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101 [2008] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ; Kelly , 145 A.D.3d at 1431, 42 N.Y.S.3d 913 ).
Defendant contends in his main and pro se supplemental briefs that his plea was not knowingly, voluntarily, and intelligently entered because the court threatened to impose a greater sentence in the event of a conviction following trial. Although that contention would survive even a valid waiver of the right to appeal (see People v Juarbe, 162 A.D.3d 1625, 1625 [4th Dept 2018]), defendant failed to move to withdraw his plea or to vacate the judgment of conviction on that ground and thus failed to preserve his contention for our review (see id. at 1625-1626; People v Kelly, 145 A.D.3d 1431, 1431 [4th Dept 2016], lv denied 29 N.Y.3d 949 [2017]; see generally People v Grimes, 53 A.D.3d 1055, 1056 [4th Dept 2008], lv denied 11 N.Y.3d 789 [2008]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]; Kelly, 145 A.D.3d at 1431).
Memorandum: On appeal from a judgment convicting her upon her plea of guilty of assault in the first degree ( Penal Law ยง 120.10[1] ), defendant contends that her plea was not knowingly, voluntarily, and intelligently entered because County Court threatened to impose a greater sentence in the event of a conviction following trial. Although that contention survives defendant's valid waiver of the right to appeal (seePeople v. Garner, 111 A.D.3d 1421, 1421, 974 N.Y.S.2d 868 [4th Dept. 2013], lv denied 23 N.Y.3d 1036, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ), defendant failed to move to withdraw her plea or to vacate the judgment of conviction and thus failed to preserve her contention for our review (seePeople v. Kelly, 145 A.D.3d 1431, 1431, 42 N.Y.S.3d 913 [4th Dept. 2016], lv denied 29 N.Y.3d 949, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017] ; People v. Flinn, 60 A.D.3d 1304, 1305, 875 N.Y.S.2d 364 [4th Dept. 2009] ). Nevertheless, we exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[3][a] ).
Although defendant signed a written waiver of his right to appeal, the colloquy between County Court and defendant was insufficient to ensure that the waiver " was knowingly, voluntarily and intelligently entered' " (People v McCoy, 107 AD3d 1454, 1454 [4th Dept 2013], lv denied 22 NY3d 957 [2013]; see People v Carno, 101 AD3d 1663, 1664 [4th Dept 2012], lv denied 20 NY3d 1060 [2013]). While defendant's contention that his plea was coerced by statements made by the court or was otherwise involuntarily entered "survives even a valid waiver of the right to appeal" (People v Cooper, 79 AD3d 1684, 1684 [4th Dept 2010], lv denied 16 NY3d 857 [2011]; see also People v Jennings, 8 AD3d 1067, 1068 [4th Dept 2004], lv denied 3 NY3d 676 [2004]), we conclude that it is unpreserved for our review because he failed to move to withdraw his plea or vacate the judgment of conviction (see People v Kelly, 145 AD3d 1431, 1431 [4th Dept 2016], lv denied 29 NY3d 949 [2017]; People v Robinson, 112 AD3d 1349, 1349 [4th Dept 2013], lv denied 23 NY3d 1042 [2014]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).
Defendant contends in his main and pro se supplemental briefs that his plea was not knowingly, voluntarily, and intelligently entered because the court threatened to impose a greater sentence in the event of a conviction following trial. Although that contention would survive even a valid waiver of the right to appeal (see People v Juarbe, 162 A.D.3d 1625, 1625 [4th Dept 2018]), defendant failed to move to withdraw his plea or to vacate the judgment of conviction on that ground and thus failed to preserve his contention for our review (see id. at 1625-1626; People v Kelly, 145 A.D.3d 1431, 1431 [4th Dept 2016], lv denied 29 N.Y.3d 949 [2017]; see generally People v Grimes, 53 A.D.3d 1055, 1056 [4th Dept 2008], lv denied 11 N.Y.3d 789 [2008]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]; Kelly, 145 A.D.3d at 1431).