Opinion
11-10-2016
The PEOPLE of the State of New York, Respondent, v. Kenneth LAND, Defendant–Appellant.
Kathryn Friedman, Buffalo, for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
Kathryn Friedman, Buffalo, for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, AND SCUDDER, JJ.
MEMORANDUM:On appeal from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15[2] ), defendant contends that County Court erred in accepting his plea of guilty without making further inquiry to ensure that the plea was knowing and voluntary. That contention, which arises out of defendant's assertions to the presentence investigator that he was not involved in the crime and defendant's protestations of the unjustness of his conviction to the court at sentencing, amounts to a challenge to the factual sufficiency of the plea allocution (see People v. Arney, 120 A.D.3d 949, 950, 990 N.Y.S.2d 752 ; see generally People v. Hicks, 128 A.D.3d 1358, 1359, 8 N.Y.S.3d 748, lv. denied 27 N.Y.3d 999, 38 N.Y.S.3d 109, 59 N.E.3d 1221 ). Defendant's challenge is encompassed by the valid waiver of the right to appeal (see People v. McCrea, 140 A.D.3d 1655, 1655, 32 N.Y.S.3d 778 ), and it is not preserved for our review inasmuch as defendant did not move to withdraw the plea or to vacate the judgment of conviction (see People v. Rinker, 141 A.D.3d 1177, 34 N.Y.S.3d 926 ; see generally People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ). This case does not fall within the narrow exception to the preservation requirement articulated in Lopez (see id. at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Brinson, 130 A.D.3d 1493, 1493, 11 N.Y.S.3d 788, lv. denied 26 N.Y.3d 965, 18 N.Y.S.3d 601, 40 N.E.3d 579 ), but we in any event note that, although not required to do so, the court conducted an inquiry into the validity of the plea based on the statements made by defendant during his presentence interview and at sentencing (see generally People v. Garcia–Cruz, 138 A.D.3d 1414, 1415, 30 N.Y.S.3d 427, lv. denied 28 N.Y.3d 929, 40 N.Y.S.3d 358, 63 N.E.3d 78 ).
Contrary to defendant's further contention, the sentence is not illegal, and the valid waiver of the right to appeal encompasses the contention that the sentence is unduly harsh and severe (see generally People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.