Opinion
2013-05-3
The PEOPLE of the State of New York, Respondent, v. Kelvin SPEARS, Defendant–Appellant.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.), rendered July 31, 2009. The judgment convicted defendant, upon his plea of guilty, of sexual abuse in the second degree. Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.), rendered July 31, 2009. The judgment convicted defendant, upon his plea of guilty, of sexual abuse in the second degree.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of sexual abuse in the second degree (Penal Law § 130.60 [2] ). We agree with defendant that Supreme Court's “single reference to [the] right to appeal is insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” ( People v. Adger, 83 A.D.3d 1590, 1591, 921 N.Y.S.2d 436,lv. denied17 N.Y.3d 857, 932 N.Y.S.2d 22, 956 N.E.2d 803 [internal quotation marks omitted] ). Contrary to defendant's contention, the court did not abuse its discretion in denying his request for an adjournment at sentencing ( see generally People v. Aikey, 94 A.D.3d 1485, 1486, 943 N.Y.S.2d 702,lv. denied 19 N.Y.3d 956, 950 N.Y.S.2d 108, 973 N.E.2d 206; People v. LaCroce, 83 A.D.3d 1388, 1388, 919 N.Y.S.2d 728,lv. denied17 N.Y.3d 807, 929 N.Y.S.2d 567, 953 N.E.2d 805). Additionally, defendant failed to preserve for our review his contention that the plea colloquy was factually insufficient inasmuch as he failed to move to withdraw his plea of guilty or to vacate the judgment of conviction on that ground ( see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Streeter, 23 A.D.3d 1113, 1114, 803 N.Y.S.2d 474,lv. denied6 N.Y.3d 759, 810 N.Y.S.2d 427, 843 N.E.2d 1167). The narrow exception to the preservation rule does not apply here ( see Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5), and in any event defendant's contention lacks merit ( see id. at 666 n. 2, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Scott, 15 A.D.3d 883, 884, 788 N.Y.S.2d 798,lv. denied4 N.Y.3d 856, 797 N.Y.S.2d 430, 830 N.E.2d 329).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.